# Sharad Kumar Chauhan v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 510
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-21
- **Case number:** Writ-A No. 12486 of 2022
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharad-kumar-chauhan-v-state-of-u-p-ors-47858
- **Pages:** 7

## Headnote

Law
-
Compassionate
Appointment - For all the government
vacancies equal opportunity should be
provided to all aspirants as mandated
u/Article 14 and 16 of the Constitution.
However, appointment on compassionate
ground offered to a dependent of a
deceased employee is an exception to the
said norms. The compassionate ground is
a concession and not a right. (Para 10)

Compassionate
appointment
is
an
exception
to
the
general
rule
of
appointment in the public services and is
in favour of the dependents of a deceased
dying in harness and leaving his family in
penury
and
without
any
means
of
livelihood, and in such cases, out of pure
humanitarian
consideration
taking
into
consideration the fact that unless some source
of livelihood is provided, the family would not be
able to make both ends meet, a provision is
made in the rules to provide gainful employment
to one of the dependants of the deceased who
may be eligible for such employment. The
whole object of granting compassionate
employment is, thus, to enable the family
to tide over the sudden crisis. The object is
not to give such family a post much less a post
held by the deceased. (Para 12)

In the writ petition the petitioner has not made
any averment that the family of the petitioner
which comprises of his father and himself has
not been able to tide over the financial crisis
resulting from the death of his mother in the
year 2011. No averments have been made
regarding the financial status of the family and
himself. The petitioner has filed an affidavit of
himself and his father stating that the father is
63 years of age and does farming and the
petitioner is not employed in any government
job. The petitioner is now 40 years of age. It is
too late in the day to consider the case of the
petitioner for compassionate appointment. (Para
8)

This Court is not inclined to interfere with the
impugned
order
denying
the
petitioner
compassionate appointment on the death of the
mother of the petitioner who died-in-harness in
the year 2011. If the appointment of the
petitioner on compassionate grounds is now
considered after 11 years of the death of the
deceased employee, it would be against the
very object and purpose for which appointment
on compassionate grounds is provided. (Para
13)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

510 INDIAN LAW REPORTS ALLAHABAD SERIES
1.1.1986, it was directed that they would be
merged as Assistant Teacher (L.T. Grade)
as soon as they complete ten years of
satisfactory service.

22. It seems from the order of the District
Inspector of Schools dated 10.9.1999 that the
incumbent working in C.T. Grade namely Shri
Shambhu Sharan Singh was merged in L.T.
Grade against the post available in promotion
quota. A further perusal of the order impugned
dated 3.7.2001 indicates that the said proposal
of promotion/merger of Shri Shambhu Sharan
Singh was approved.

23. Be that as it may, whether the
promotion or merger of Shri Shambhu Sharan
Singh in L.T. Grade was approved or
disapproved, in both eventuality, no post in L.T.
Grade became vacant.

24. Meaning thereby that in case the
promotion/merger of Shri Shambhu Sharan
Singh in L.T. Grade was not approved, he
would continue as C.T. Grade teacher till he
would have fulfilled the requirement of
merger/promotion in L.T. Grade.

25. On the other side, in case his
promotion/merger in C.T. Grade was approved,
there would occur no vacancy, the reason being
that the C.T. Grade was a dying cadre and
further recruitment in the said grade was
banned. An incumbent working in C.T. Grade
at the time of the issuance of the Government
Order dated 19.2.1991 was entitled to be
merged in L.T. Grade on completion of two
conditions, i.e. ten years of satisfactory service
on 1.1.1986 and possessing the qualification of
being a trained graduates. Those who did not
complete ten years of satisfactory service as on
1.1.1986 were merged later as Assistant
Teacher in L.T. Grade as soon as they
completed ten years of service and there occur
vacancy in L.T. Grade in promotion quota.

26. In view of the above, the statement in
the order impugned dated 3.7.2001 that there
was no vacancy on account of promotion of
Shri Shambhu Sharan Singh is found to be
correct. Though the said order is not happily
worded but the crux of the matter is that there
occur no vacancy in L.T. Grade, against which
the petitioner could have been appointed,
terming it as appointment against a short term
vacancy.

27. In view of the above discussion, on
the merits of the case, the contention of the
learned counsel for the petitioner that the
petitioner was appointed against a short-term
vacancy of L.T. Grade after following due
procedure under the Act is found misconceived.
As there was no vacancy, there was no occasion
for the Committee of Management to notify the
same or to make selection. The entire process of
selection of the petitioner/appellant as Assistant
Teacher, L.T. Grade adopted by the Committee
of Management of the institution is absolutely
illegal. The appointment of the petitioner is held
to be void ab initio.

The writ petition is, accordingly,
dismissed being devoid of merits.

In the result, the appeal stands
dismissed.
----------
(2022) 11 ILRA 510
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 12486 of 2022

Sharad Kumar Chauhan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Seemant Singh
11 All. Sharad Kumar Chauhan Vs. State of U.P. & Ors.
511
Counsel for the Respondents:
C.S.C., Sri Prem Prakash Yadav

A.
Service
Law
-
Compassionate
Appointment - For all the government
vacancies equal opportunity should be
provided to all aspirants as mandated
u/Article 14 and 16 of the Constitution.
However, appointment on compassionate
ground offered to a dependent of a
deceased employee is an exception to the
said norms. The compassionate ground is
a concession and not a right. (Para 10)

Compassionate
appointment
is
an
exception
to
the
general
rule
of
appointment in the public services and is
in favour of the dependents of a deceased
dying in harness and leaving his family in
penury
and
without
any
means
of
livelihood, and in such cases, out of pure
humanitarian
consideration
taking
into
consideration the fact that unless some source
of livelihood is provided, the family would not be
able to make both ends meet, a provision is
made in the rules to provide gainful employment
to one of the dependants of the deceased who
may be eligible for such employment. The
whole object of granting compassionate
employment is, thus, to enable the family
to tide over the sudden crisis. The object is
not to give such family a post much less a post
held by the deceased. (Para 12)

In the writ petition the petitioner has not made
any averment that the family of the petitioner
which comprises of his father and himself has
not been able to tide over the financial crisis
resulting from the death of his mother in the
year 2011. No averments have been made
regarding the financial status of the family and
himself. The petitioner has filed an affidavit of
himself and his father stating that the father is
63 years of age and does farming and the
petitioner is not employed in any government
job. The petitioner is now 40 years of age. It is
too late in the day to consider the case of the
petitioner for compassionate appointment. (Para
8)

This Court is not inclined to interfere with the
impugned
order
denying
the
petitioner
compassionate appointment on the death of the
mother of the petitioner who died-in-harness in
the year 2011. If the appointment of the
petitioner on compassionate grounds is now
considered after 11 years of the death of the
deceased employee, it would be against the
very object and purpose for which appointment
on compassionate grounds is provided. (Para
13)

Writ petition dismissed. (E-4)

Precedent followed:

1. Fertilizers and Chemicals Travancore Ltd. &
ors. Vs Anusree K.B., Civil Appeal No. 6958 of
2022 (Para 9)

2. Director of Treasuries In Karnataka & anr. Vs
V. Somyashree, (2021) SCC online SC 704 (Para
9)

3. N.C. Santosh Vs St. of Karn., (2020) 7 SCC
617 (Para 9)

4. Himachal Pradesh & anr. Vs Shashi Kumar,
(2019) 3 SCC 653 (Para 11)

5. Govind Prakash Verma Vs L.I.C., (2005) 10
SCC 289 (Para 11)

Present
petition
assails
order
dated
08.07.2021, passed by Secretary, U.P.
Basic Education Board, complying with
order of this Court dated 03.09.2020,
which directed respondent to consider
petitioner's grievance. Prayer has also
been
made
for
compassionate
appointment on a suitable post.

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. Heard Sri Seemant Singh, learned
counsel for the petitioner, learned Standing
Counsel for the State-Respondent No.1 and
Sri Prem Prakash Yadav, learned counsel
for the Respondent Nos.2, 3 & 4.

2. By means of the present writ
petition, the petitioner has prayed for
512 INDIAN LAW REPORTS ALLAHABAD SERIES
issuance of a writ of certiorari quashing the
impugned order dated 08.07.2021 passed
by the Respondent No.2, Secretary, U.P.
Basic Education Board, whereby the claim
of
the
petitioner
for
compassionate
appointment on a suitable post and
according to his qualification has been
rejected. A further prayer for mandamus
commanding the respondents to grant
compassionate
appointment
to
the
petitioner on the basis of the application
dated 26.11.2011 and 10/14.11.2016 on a
suitable post according to his qualification
has also been made.

3. Learned counsel for the petitioner
submits that the mother of the petitioner
was appointed as Assistant Teacher in
Upper Primary School, Mustafabad, Block
Jaleelpur, District Bijnor on 18.09.1997
and died-in-harness on 16.11.2011. After
the death of his mother, the petitioner
possessing a B.Sc. Degree, filed an
application
dated
26.11.2011
seeking
compassionate appointment on the post of
Assistant Teacher before the Respondent
No.4, Block Education Officer, Jaleelpur,
District Jaunpur. The application of the
petitioner was forwarded to the Respondent
No.3, District Basic Education Officer. The
petitioner again filed another application
dated 10.11.2016 before the Respondent
No.3, Block Education Officer. Vide letter
dated 13.12.2016 the Respondent No.2,
District Basic Education Officer, informed
the petitioner that his second application
dated 13.12.2016 is being returned, treating
the same to be time barred. By the said
letter, the petitioner was required to
complete all the formalities and submit an
application
seeking
compassionate
appointment on a post according to his
qualification through proper channel. In
pursuance of the letter dated 13.12.2016,
the petitioner submitted his application
dated 28.07.2017, which was duly received
by the Respondent No.4. When no heed
was paid on the application of the petitioner
seeking compassionate appointment, the
petitioner preferred Writ (A) No.6802 of
2020, which was disposed of vide order
dated 03.09.2020 with a direction to the
Respondent
No.2,
to
consider
the
petitioner's grievance and pass appropriate
speaking order within a period of two
months. When the order dated 03.09.2020
was not complied with the petitioner filed
Contempt Application (Civil) No.4588 of
2021, which was also disposed of vide
order dated 26.10.2021 directing the
opposite party to consider the case of the
petitioner and comply with the order passed
in Writ (A) No.6802 of 2020 within six
weeks. In pursuance of the order passed by
Writ Court and Contempt Court, the
Respondent No.2, vide his order dated
08.07.2021 considered the representation
dated 10.09.2020 filed by the petitioner and
rejected his claim for compassionate
appointment. Being aggrieved withe the
aforesaid
order,
the
petitioner
has
approached this Court by way of the
present writ petition.

4. On instructions, Sri Prem Prakash
Yadav, learned counsel appearing for the
Respondent Nos.2, 3 & 4 submits at the
time of filing of first application seeking
compassionate appointment the petitioner
did not possess the requisite educational
qualification to be appointed as Assistant
Teacher, therefore, his application was
rejected by the District Basic Education
Officer. After five years, the petitioner
again filed application dated 25.11.2016.
Vide letter dated 13.12.2016 the petitioner
was directed to file proper application for
compassionate appointment on a prescribed
format. After the letter dated 13.12.2016
issued by the respondent authority, the
11 All. Sharad Kumar Chauhan Vs. State of U.P. & Ors.
513
petitioner failed to file proper application
on a prescribed format for about four years.
The petitioner again on 12.06.2020 filed
application
seeking
compassionate
appointment, which is highly belated as
such the appointment of the petitioner has
rightly been rejected by the respondent
authorities.

5. I have heard learned counsel for the
petitioner,
learned
Standing
Counsel
representing the State Respondents and Sri
Prem Prakash Yadav, learned counsel
representing the Respondent Nos.2, 3 & 4
and have perused the record.

6. On the perusal of the record, it is
borne out that the mother of the petitioner
who was employed as Assistant Teacher
died in harness on 16.11.2011. The
petitioner
vide
application
dated
26.11.2011 made an application seeking
compassionate appointment on the post of
Assistant Teacher. The said application was
turned down on the ground that the
petitioner did not possess the requisite
educational/essential
qualification
prescribed for appointment as Assistant
Teacher. The petitioner did not pursue his
application further and after nearly 5 years
filed another application dated 10.11.2016
seeking compassionate appointment on
suitable post as per qualification. This
application bears the date of receipt as
25.11.2016 which has been interpreted to
read 15.11.2016. The application was
treated to have been filed beyond 5 years of
the death of the employee and as such was
forwarded to the Secretary, U.P. Basic
Shiksha Parishad, Prayagraj, as he was the
Competent Authority to consider the case
of
the
petitioner
for
compassionate
appointment. When nothing was done by
the Secretary, U.P. Basic Education the
petitioner filed Writ (A) No.6802 of 2020
which was disposed of vide order dated
03.09.2020 directing the Secretary, Basic
Shiksha
Parishad
to
consider
the
petitioner's grievance within two months
through a speaking order. While disposing
of the writ petition, this Court noticed that
the petitioner at the relevant time was 39
year and at the time of the death of his
mother was 30 years and in such view of
the matter the Secretary while considering
the claim was required to look into the
eligibility
of
the
petitioner
for
compassionate appointment and also advert
to the status of the petitioner's father at the
time of the death of the mother of the
petitioner and whether the family was in
dire financial crisis or there was availability
of alternative source of bred and butter as
compassionate appointment cannot be a
source of backdoor entry and the only
purpose is to mitigate the undue hardship
caused to the family due to the death of the
bread earner.

7. A perusal of the impugned order
dated 08.07.2021 passed by the Secretary,
Basic Shiksha Parishad, Prayagraj, reveals
that the Secretary has not at all adhered to
the
directions
of
this
Court
dated
03.09.2020 passed in Writ (A) No.6820 of
2020 in as much as there is no discussion or
finding recorded on the financial status of
the family, whether the father of the
petitioner was in employment or not and
the claim has been rejected simply on the
ground that it was not filed on proper
format and was not liable to be entertained
in terms of Clause 8 of the Government
Order dated 04.09.2000.

8. In the writ petition the petitioner
has not made any averment that the family
of the petitioner which comprises of his
father and himself have not been able to
tide over the financial crisis resulting from
514 INDIAN LAW REPORTS ALLAHABAD SERIES
the death of his mother in the year 2011.
No averments have been made regarding
the financial status of the family and
himself. The petitioner has filed an
affidavit of himself and his father as
Annexure No.4 to the writ petition stating
that the father is 63 years of age and does
farming and the petitioner is not employed
in any government job. The petitioner is
now 40 years of age. This Court in normal
circumstances would have remanded the
matter back to the Secretary, Basic Shiksha
Parishad, Prayagraj, for decision afresh
strictly in terms of the order dated
03.09.2020 passed in Writ (A) No.6820 of
2020. However, considering the age of the
writ petitioner the Court is of the opinion
that it is too late in the day to consider the
case of the petitioner for compassionate
appointment.

9. The Apex Court in a recent
decision dated 30.09.2022 passed in Civil
Appeal No.6958 of 2022 (Fertilizers and
Chemicals Travancore Ltd. & others Vs.
Anusree K. B.) while dealing with a case of
compassionate appointment after 24 years
from the death of the deceased employee,
considering the law laid down in the case
of Director of Treasuries in Karnataka and
Another Vs. V. Somyashree, (2021 SCC
online SC 704) after referring to the
decision rendered in N. C. Santhosh Vs.
State of Karnataka (2020) 7 SCC 617,
summarized the principles governing the
grant of appointment on compassionate
grounds as under:-

"(i)
that
the
compassionate
appointment is an exception to the general
rule;

(ii) that no aspirant has a right
to compassionate appointment;

(iii) the appointment to any
public post in the service of the State has
to be made on the basis of the principle in
accordance with Articles 14 and 16 of the
Constitution of India;

(iv)
appointment
on
compassionate ground can be made only
on fulfilling the norms laid down by the
State's policy and/or satisfaction of the
eligibility criteria as per the policy;

(v) the norms prevailing on the
date
of
the
consideration
of
the
application should be the basis for
consideration of claim for compassionate
appointment."

10. The Apex Court went on to
observe that "as per the law laid down by
this Court in catena of decisions on the
appointment on compassionate ground for
all
the
government
vacancies
equal
opportunity should be provided to all
aspirants as mandated under Article 14 and
16
of
the
Constitution.
However,
appointment on compassionate ground
offered to a dependent of a deceased
employee is an exception to the said norms.
The compassionate ground is a concession
and not a right.

11. Then again in the case of State of
Himachal Pradesh and Anr. Vs. Shashi
Kumar reported in (2019) 3 SCC 653, the
Apex Court had the occasion to consider
the object and purpose of appointment on
compassionate ground and considered the
decision in the case of Govind Prakash
Verma Vs. LIC, reported in (2005) 10
SCC 289, particularly in paras 21 and 26,
which are being reproduced hereunder :-

"21. The decision in Govind
Prakash Verma [Govind Prakash Verma v.
LIC, (2005) 10 SCC 289, has been
considered
subsequently
in
several
decisions. But, before we advert to those
decisions, it is necessary to note that the
11 All. Sharad Kumar Chauhan Vs. State of U.P. & Ors.
515
nature of compassionate appointment had
been considered by this Court in Umesh
Kumar Nagpal v. State of Haryana [Umesh
Kumar Nagpal v. State of Haryana, (1994)
4 SCC 138]. The principles which have
been laid down in Umesh Kumar Nagpal
[Umesh
Kumar
Nagpal
v. State
of
Haryana, (1994) 4 SCC 138] have been
subsequently followed in a consistent line
of
precedents
in
this
Court.
These
principles
are
encapsulated
in
the
following extract: (Umesh Kumar Nagpal
case [Umesh Kumar Nagpal v. State of
Haryana, (1994) 4 SCC 138], SCC pp.
139-40, para 2) "2. ... As a rule,
appointments in the public services should
be made strictly on the basis of open
invitation of applications and merit. No
other mode of appointment nor any other
consideration is permissible. Neither the
Governments nor the public authorities are
at liberty to follow any other procedure or
relax the qualifications laid down by the
rules for the post. However, to this general
rule which is to be followed strictly in every
case, there are some exceptions carved out
in the interests of justice and to meet
certain contingencies. One such exception
is in favour of the dependants of an
employee dying in harness and leaving his
family in penury and without any means of
livelihood. In such cases, out of pure
humanitarian consideration taking into
consideration the fact that unless some
source of livelihood is provided, the family
would not be able to make both ends meet,
a provision is made in the rules to provide
gainful
employment
to
one
of
the
dependants of the deceased who may be
eligible for such employment. The whole
object
of
granting
compassionate
employment is thus to enable the family to
tide over the sudden crisis. The object is
not to give a member of such family a post
much less a post for post held by the
deceased. What is further, mere death of an
employee in harness does not entitle his
family to such source of livelihood. The
Government
or
the
public
authority
concerned has to examine the financial
condition of the family of the deceased, and
it is only if it is satisfied, that but for the
provision of employment, the family will
not be able to meet the crisis that a job is to
be offered to the eligible member of the
family. The posts in Classes III and IV are
the lowest posts in non- manual and
manual categories and hence they alone
can be offered on compassionate grounds,
the object being to relieve the family, of the
financial destitution and to help it get over
the
emergency.
The
provision
of
employment in such lowest posts by making
an exception to the rule is justifiable and
valid since it is not discriminatory. The
favourable
treatment
given
to
such
dependant of the deceased employee in
such posts has a rational nexus with the
object sought to be achieved viz. relief
against destitution. No other posts are
expected or required to be given by the
public authorities for the purpose. It must
be remembered in this connection that as
against the destitute family of the deceased
there are millions of other families which
are equally, if not more destitute. The
exception to the rule made in favour of the
family of the deceased employee is in
consideration of the services rendered by
him and the legitimate expectations, and
the change in the status and affairs, of the
family
engendered
by
the
erstwhile
employment which are suddenly upturned."

26. The judgment of a Bench of
two Judges in Mumtaz Yunus Mulani v.
State of Maharashtra [(2008) 11 SCC 384]
has adopted the principle that appointment
on compassionate grounds is not a source
of recruitment, but a means to enable the
family of the deceased to get over a sudden
516 INDIAN LAW REPORTS ALLAHABAD SERIES
financial crisis. The financial position of
the family would need to be evaluated on
the basis of the provisions contained in the
scheme. The decision in Govind Prakash
Verma [Govind Prakash Verma v. LIC,
(2005) 10 SCC 289 : 2005 SCC (L&S) 590]
has been duly considered, but the Court
observed that it did not appear that the
earlier binding precedents of this Court
have been taken note of in that case."

12. The Apex Court thus observed:-

"Thus as per the law laid down by
this Court in the aforesaid decisions,
compassionate appointment is an exception
to the general rule of appointment in the
public services and is in favour of the
dependents of a deceased dying in harness
and leaving his family in penury and without
any means of livelihood, and in such cases,
out of pure humanitarian consideration
taking into consideration the fact that unless
some source of livelihood is provided, the
family would not be able to make both ends
meet, a provision is made in the rules to
provide gainful employment to one of the
dependants of the deceased who may be
eligible for such employment. The whole
object
of
granting
compassionate
employment is, thus, to enable the family to
tide over the sudden crisis. The object is not
to give such family a post much less a post
held by the deceased."

13. Applying the law laid down by the
Apex Court in the aforesaid decisions to the
facts and circumstances of the present case
and considering the observations made in the
aforesaid decisions and the object and
purpose for which the appointment on
compassionate ground is provided, the Court
is not inclined to interfere with the impugned
order denying the petitioner compassionate
appointment on the death of the mother of the
petitioner who died-in-harness in the year
2011. If the appointment of the petitioner on
compassionate grounds is now considered
after 11 years of the death of the deceased
employee, it would be against the very object
and purpose for which appointment on
compassionate grounds is provided.

14. The writ petition fails and is,
accordingly, dismissed.
----------
(2022) 11 ILRA 516
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.09.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 15413 of 2022

Vaishali Dwivedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ratnakar Udadhyay, Sri R.K. Ojha (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri M.N. Singh

A. Service Law - Selection - Correction in
application form - Once the petitioner has
not
proceeded
to
comply
with
the
instruction and committed error, is not
entitled
for
any
relief.
Once
the
Commission is not at fault and action of
Commission is not arbitrary, there is no
occasion for this Court to interfere in such
matter by permitting the candidate to
appear in the Main Examination, who has
admittedly not followed the instruction so
given in advertisement. (Para 16, 18)

In the present case, it is clear that petitioner
had the opportunity to correct her application
form including category, but she did not avail