# Shiv Kumar v. State Of U.P. & Ors

- **Citation:** (2025) 8 ILRA 689
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-05
- **Case number:** Writ A No. 12839 of 2023
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kumar-v-state-of-u-p-ors-53750
- **Pages:** 18

## Headnote

C.S.C., Gaurav Bishan

ISSUE FOR CONSIDERATION
Whether
the
petitioner's
compassionate
appointment could be terminated after 14 years
on the ground that he failed to disclose in his
application the material fact that his mother was
employed in government service, despite the
petitioner's mother having submitted a notarized
affidavit disclosing that she was working as an
Assistant Teacher and the respondents having
verified
all
documents
at
the
time
of
appointment.

HEADNOTE
Service Law - Compassionate Appointment -
Alleged Concealment - Mother employed in
Government service - No prescribed application
format - No misrepresentation - Duty of authority
to verify - Long delay of 14 years - Termination
arbitrary - Reinstatement directed.
Held :
Petitioner applied for compassionate appointment
upon the death of his father in harness. In the
year 2000, when the petitioner submitted his
application, no prescribed format existed requiring
disclosure of any specific information. Petitioner
submitted all necessary documents, including a
notarized affidavit dated from his mother
expressly stating that she was working as an
Assistant
Teacher.
After
due
enquiry
and
verification of all records, the petitioner was
appointed as Junior Clerk on 12.07.2001.
Held : Non-disclosure of a fact not required under
law does not constitute fraud or forgery. Fraud
requires
intentional
concealment
or
misrepresentation of a material fact that the law
obligates the applicant to disclose, and such
misrepresentation must induce the authority to act
to its detriment. Mere silence does not amount to
fraud unless there exists a legal duty to disclose.
There was no misrepresentation or concealment
by
the
petitioner
regarding
his
mother's
employment.
The
notarized
affidavit
dated
28.07.2000 clearly disclosed her employment
status, and the authorities had verified all
documents before making the appointment. At the
age of 181⁄2, amid the family's distress after the
sudden death of the breadwinner, the petitioner
could not be expected to understand technical
disclosure requirements; the burden of verification
lay with the authorities. Allegations of fraud cannot
be presumed and must be proved by cogent
evidence. Respondents failed to act against the
officials responsible for verification, yet sought to
penalise the petitioner after 14 years. Once an
appointment is made after due scrutiny, it carries a
presumption of validity and cannot be cancelled on
mere presumptions. The petitioner's appointment
was neither illegal nor irregular.
Termination order held unsustainable. Writ
petition allowed; order quashed; reinstatement
with all consequential benefits directed. (Paras
34, 41-55) (E-5)

CASE LAW CITED

## Text

_Characters 0–39,955 of 60,459. This is a partial read: ask again with offset=39955 for what follows._

8 All. Shiv Kumar Vs. State of U.P. & Ors.
689
----------
(2025) 8 ILRA 689
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2025

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ A No. 12839 of 2023

Shiv Kumar ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Neelam Singh

Counsel for the Respondents:
C.S.C., Gaurav Bishan

ISSUE FOR CONSIDERATION
Whether
the
petitioner's
compassionate
appointment could be terminated after 14 years
on the ground that he failed to disclose in his
application the material fact that his mother was
employed in government service, despite the
petitioner's mother having submitted a notarized
affidavit disclosing that she was working as an
Assistant Teacher and the respondents having
verified
all
documents
at
the
time
of
appointment.

HEADNOTE
Service Law - Compassionate Appointment -
Alleged Concealment - Mother employed in
Government service - No prescribed application
format - No misrepresentation - Duty of authority
to verify - Long delay of 14 years - Termination
arbitrary - Reinstatement directed.
Held :
Petitioner applied for compassionate appointment
upon the death of his father in harness. In the
year 2000, when the petitioner submitted his
application, no prescribed format existed requiring
disclosure of any specific information. Petitioner
submitted all necessary documents, including a
notarized affidavit dated from his mother
expressly stating that she was working as an
Assistant
Teacher.
After
due
enquiry
and
verification of all records, the petitioner was
appointed as Junior Clerk on 12.07.2001.
Held : Non-disclosure of a fact not required under
law does not constitute fraud or forgery. Fraud
requires
intentional
concealment
or
misrepresentation of a material fact that the law
obligates the applicant to disclose, and such
misrepresentation must induce the authority to act
to its detriment. Mere silence does not amount to
fraud unless there exists a legal duty to disclose.
There was no misrepresentation or concealment
by
the
petitioner
regarding
his
mother's
employment.
The
notarized
affidavit
dated
28.07.2000 clearly disclosed her employment
status, and the authorities had verified all
documents before making the appointment. At the
age of 181⁄2, amid the family's distress after the
sudden death of the breadwinner, the petitioner
could not be expected to understand technical
disclosure requirements; the burden of verification
lay with the authorities. Allegations of fraud cannot
be presumed and must be proved by cogent
evidence. Respondents failed to act against the
officials responsible for verification, yet sought to
penalise the petitioner after 14 years. Once an
appointment is made after due scrutiny, it carries a
presumption of validity and cannot be cancelled on
mere presumptions. The petitioner's appointment
was neither illegal nor irregular.
Termination order held unsustainable. Writ
petition allowed; order quashed; reinstatement
with all consequential benefits directed. (Paras
34, 41-55) (E-5)

CASE LAW CITED
1. Smt. Sugandha Upadhyay v. State of U.P.,
Writ-A No. 4597/2024;
2. State of U.P. v. Smt. Sugandha Upadhyay,
Special Appeal No. 5/2025;
3. State of U.P. v. Sugandha Upadhyay, SLP (C)
No. 6320/2025 (dismissed);
4. Uday Pratap Singh v. DBEO Basti, Writ-A No.
2134/2023;
5. Basic Shiksha Adhikari And another v. Uday
Pratap Singh, Special Appeal Defective No.
870/2023;
6. Special Leave Petition (Civil) Diary No.7348 of
2024 (Basic Shiksha Adhikari, District Basti &
Anr vs. Uday Pratap Singh & Anr.);
7. Vishwaroop v. State of U.P., Writ-A No.
2058/2024;
690 INDIAN LAW REPORTS ALLAHABAD SERIES
8. State of U.P. v. Vishwaroop, Special Appeal
Defective No. 93/2025;
9. Rahul v. State of U.P., Writ-A No.
11785/2021;
10. Md. Zamil Ahmed v. State of Bihar, (2016)
12 SCC 342;
11. S.P. Chengalvaraya Naidu v. Jagannath,
(1994) 1 SCC 1;
12. R.K. Anand v. Registrar, Delhi High Court,
(2009) 8 SCC 106;
13. Union of India v. M. Bhaskaran, 1995 Supp
(4) SCC 100;
14. Lazarus Estates Ltd. v. Beasley, [1956] 1 QB
702;
15. Kendriya Vidyalaya Sangathan v. Damodar
Prasad Pandey, (2004) 12 SCC 299;
16. Bharat Coking Coal Ltd. v. Shyam Kishore
Singh, (2020) 3 SCC 411;
17. SBI v. Raj Kumar, (2010) 11 SCC 661;
18. State of Punjab v. Jagdip Singh, AIR 1964
SC 521.

List of Acts
Constitution
of
India;
U.P. Government Servant (Discipline & Appeal)
Rules, 1999.

List of Keywords
Compassionate
Appointment;
Concealment;
Misrepresentation;
Affidavit
Disclosure;
Employment of Mother; Duty of Verification;
Administrative Lapse; Fraud Standard; Delay of
14 Years; Natural Justice; Reinstatement.

CASE ARISING FROM
Termination order dated 31.05.2023 issued by
the competent authority cancelling petitioner's
compassionate appointment after 14 years of
service.

Appearances for Parties
Advs For Petitioner: Ms. Neelam Singh; Mr.
Adarsh Singh
Advs For Respondents: C.S.C.; Mr. Gaurav
Bishan

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Adarsh Singh, learned
counsel for the petitioner, Mr. Gaurav
Bishan, learned counsel for the respondent
no.5 as well as Mr. Hare Ram, learned
Standing counsel for the State and perused
the record.

2. By way of the present petition filed
under Article 226 of the Constitution of
India, the petitioner has assailed the order
dated 31.05.2023, whereby he has been
terminated from service on the ground that,
while seeking compassionate appointment
following the death of his father in harness
on 02.11.1998, he failed to disclose in his
application dated 17.05.2000 the material
fact that his mother was already employed
in government service.

3. Brief facts as stated by the counsel
for the petitioner are that the petitioner's
father, who was serving as an Assistant
Teacher in the Junior High School, Toksin
Block, District Mursan, District Hathras,
passed
away
while
in
service
on
02.01.1998. He was survived by his wife,
one son, and two daughters, as mentioned
in paragraph 5, who were all dependent on
him.

4. The petitioner filed an application
seeking compassionate appointment along
with relevant documents pertaining to the
family's economic condition, as well as a
notarized affidavit of no objection from the
family members before the District Basic
Education
Officer,
Hathras.
After
conducting the necessary enquiry, the
officer appointed the petitioner to the post
of Junior Clerk on 12.07.2001.

5. The petitioner diligently performed
the duties of the said post to the satisfaction
of
his
superior
officers
and
was
subsequently promoted to the position of
Senior Clerk on a vacant post on
16.10.2006.
During
this
period,
no
8 All. Shiv Kumar Vs. State of U.P. & Ors.
691
complaints or adverse remarks were
recorded against the petitioner.

6. The petitioner was also granted the
benefits of the Assured Career Progression
(A.C.P.)
scheme
along
with
the
corresponding
grade
pay,
after
due
verification and full satisfaction of the
senior officials of the department.

7. A complaint was lodged by an
unidentified
individual
against
the
petitioner which contained several vague
and unsubstantiated allegations. One of the
accusations in the aforesaid complaint was
that ambiguous or misleading information
had been provided by the petitioner to
secure an appointment on compassionate
grounds.

8. Pursuant to the aforesaid complaint,
an inquiry was conducted against the
petitioner on multiple occasions following
notice to him. However, without due
consideration of the reply submitted by the
petitioner, the impugned order was passed
in an arbitrary and unjust manner.

9. Learned counsel for the petitioner
submits that the petitioner as a matter of
fact, did not conceal any material fact vide
seeking compassionate appointment. He
further submits that at that time i.e in the
year 2000, when the application for
compassionate appointment was given by the
petitioner, there was no form prescribed as
such which required particular information to
be furnished. The petitioner has submitted all
the relevant documents like the affidavits
regarding no objection of the family
members, including a notarized affidavit
dated 28.07.2000 given by his mother,
wherein it has been mentioned that she is
working as an Assistant Teacher in Prathmik
Vidhyalay Bahrampur, District- Aligarh. The
said affidavit is annexed as Annexure No.1 to
the rejoinder affidavit. After due verification
of the documents, the petitioner was offered
appointment on compassionate ground.

10. Thus, from the aforesaid facts, it
cannot be said that the petitioner concealed
any material information/fact from the
respondents for seeking appointment on
compassionate ground. Hence, the ground
assigned in the impugned order is absolutely
unsustainable.

11. Learned counsel for the petitioner
further contends that the relevant rules
regarding compassionate appointment came
into effect on 04.09.2000 and the applicant
moved the application for appointment on
compassionate ground prior to enforcement
of the aforesaid rules. The petitioner was of
tender age, not understanding the intricacies
involved while moving an application
however, he has submitted all the relevant
documents which were duly verified by the
respondents, prior to giving appointment to
the petitioner.

12. He further contends that the entire
exercise, prior to passing the order impugned,
was initiated on a complaint by some
unknown person that too after 19 years of
appointment of the petitioner, on which the
inquiry
was
initiated
and
without
considering the reply of the petitioner
wherein all the facts about aforesaid
affidavit have been mentioned, order
impugned has been passed in an arbitrary
manner. While supporting his case and
meeting the grounds as raised in the order
impugned, the learned counsel for the
petitioner has relied upon the judgment
passed in Writ-A No.-4597 of 2024 (Smt.
Sugandha Upadhyay vs. State of U.P. And 2
Others) as decided on 23.08.2024, in which
it has been observed as follows :-
692 INDIAN LAW REPORTS ALLAHABAD SERIES

"The petitioner had submitted her
application
seeking
appointment
on
07.11.2012, i.e., when the petitioner was
merely 18 years of age. The petitioner, at
that age, cannot be expected to have read
the Rules, 1974. The petitioner submitted a
simple application which was not on any
prescribed
proforma
stating
her
relationship
with
the
deceased,
her
occupational
skills
and
educational
qualifications and sought compassionate
appointment in place of the deceased
claiming herself to be a family member and
dependent of the deceased employee. The
mother of the petitioner also submitted an
affidavit declaring her no-objection to the
appointment of the petitioner in place of the
deceased. There was no misrepresentation
by the petitioner regarding the employment
status of her mother in the sense that the
petitioner had not represented in her
application that her mother was not
employed with the State Government or
Central Government or any corporation
owned or controlled either by the State
Government or the Central Government.
The mother of the petitioner was employed
as Class - IV employee in the Labour
Department itself. It cannot be believed
that the selection committee and the
appointing authority had no knowledge or
information regarding the fact that the
mother of the petitioner was already
employed with the State Government. There
is nothing on record to show that the
department had sought from the petitioner
the details of the family members of the
deceased, especially as to whether any
family member or the spouse of the
deceased was already employed. By order
dated 07.05.2024, this Court had asked the
Standing Counsel to annex the application
form submitted by the petitioner seeking
employment and also to explain as to
whether
the
details
regarding
other
dependents of the deceased employee were
sought
from
the
petitioner
while
considering
her
application
for
compassionate appointment. ..........

In the present case, the petitioner
was appointed ten years back and had been
confirmed in service. Considering the
length of service of the petitioner, it is too
late for the respondents to cancel the
appointment of the petitioner on the ground
of the prohibition incorporated in Rule 5
and the employment status of her mother."

13. Against the order passed in the
aforesaid case, a Special Appeal No.-5 of
2025 (State of U.P. Through Its Principal
Secretary And 2 Others vs. Smt.
Sugandha Upadhyay) was filed which has
been decided on 24.01.2025, wherein the
Court while dispersing the appeal of the
State and affirming the order passed by the
learned Single Judge has held as follows :-

"8. Learned Single Judge had
mentioned that she had not stated that her
mother was not employed with the State
Government or the Central Government or
any corporation owned or controlled either
by the State Government or the Central
Government. Learned Single Judge had
also found that the mother of the petitioner
was employed as Class-IV employee in the
Labour Department itself and it was not
believable that the Selection Committee
and the Appointing Authority had no
knowledge or information regarding the
fact that the mother of the petitioner was
already
employed
with
the
same
department of the State Government.
Learned Single Judge has thereafter found
that there was absolutely no fraud
committed by the petitioner. He had also
found that the petitioner had already
worked for ten years and her services had
8 All. Shiv Kumar Vs. State of U.P. & Ors.
693
been confirmed and also the petitioner had
been promoted after her initial appointment
and the writ petition thereafter was
allowed.

9. Learned counsel for the
appellants has submitted that when there is
a fraud committed then no length of service
had to be seen and that no departmental
inquiry etc. had to be gone into. He submits
that fraud had been committed therefore
the services of the petitioner had to be done
away with, and in support of this
submission, he relied on the decisions in
Anoop Kumar Srivastava Vs. State of UP
and others, 2021 (6) AWC 5341, and
Sumit Kumar Verma Vs. State of UP and
others 2022 (2) AWC 1683 (LB).

10. Learned counsel for the
petitioner
(respondent
herein)
has
submitted that the petitioner had not
concealed any aspect of the matter. All
facts were disclosed by the petitioner.
Mother of the petitioner had given an
affidavit to the effect that she had no
objection to the appointment of the
petitioner. The appointment was preceded
by a full fledged proceeding wherein the
Selection Committee of the Department
where the mother was working had
assembled and thereafter the department
itself had issued the appointment letter.
Learned counsel for the petitioner therefore
states that the judgments which had been
relied upon by the learned counsel for the
appellants had no application in the
present case."

14. The matter travelled up to the
Apex Court and Special Leave Petition to
Appeal No.6320 of 2025 (State of U.P. &
Ors. vs. Sugandha Upadhyay) was filed and
the Special Leave Petition filed by the State
was dismissed.

15. Thus, the learned counsel for the
petitioner submits that from the aforesaid, it
was clear that after so many years of
service, the petitioner could not have been
terminated on the ground of concealment of
the fact that the petitioner's mother was in
government service, which has not been
proved.

16. In support of his submission,
learned counsel for the petitioner has also
relied upon a judgment passed in Writ-A
No.-2134 of 2023 (Uday Pratap Singh vs.
District Basic Education Officer, Basti And
2 Others) as decided on 08.08.2023. The
relevant paragraphs are quoted herein
below :-

"48. Essence of the time and
length
of
service
is
of
paramount
importance in the matters of cancellation of
appointment on the ground that the initial
appointment is contrary to the provisions of
rules or government orders. If immediately
after the appointment, authorities would
have acted upon and the appointment of the
petitioner was cancelled, then definitely no
interference by this Court was warranted
but
where
initial
compassionate
appointment was made 19 years back and
there was no concealment of facts at the
time of the said appointment, the same
cannot be cancelled after elapse of 19
years on the ground that the initial
appointment was made in violation of some
provision of government order. Even
further, in the present case departmental
authorities, at no point of time, ever noticed
that
petitioner's
appointment
on
compassionate ground was made contrary
to the provisions of Government Order
dated 04.09.2000 rather the exercise of
cancellation of the petitioner's appointment
has been done after elapse of 19 years on
the
behest
of
private
complainant,
694 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore,
in
the
given
facts
and
circumstances of the case, the order dated
30.12.2022 whereby appointment of the
petitioner has been cancelled, cannot
sustain in the eyes of law.

49. The order dated 30.12.2022
whereby services of the petitioner have
been
terminated
by
cancelling
his
appointment from the date of his initial
appointment is also not sustainable on
another ground as regular disciplinary
proceedings were initiated against the
petitioner by issuing him a charge-sheet to
which he submitted reply but thereafter
neither the procedure for conducting
disciplinary inquiry was adopted nor
inquiry report was submitted. It is well
settled proposition of law that once
disciplinary
proceedings
have
been
initiated by issuing a charge-sheet then the
procedure
prescribed
for
holding
disciplinary inquiry has to be followed and
on the basis of the inquiry report,
disciplinary authority will issue a show
cause notice and after taking reply, the
final order in the disciplinary proceedings
will be passed whereas in the present case
though charge-sheet was issued to the
petitioner and his reply was taken but
thereafter procedure as provided under
Rule 7 and Rule 9 of The Uttar Pradesh
Government
Servant
(Discipline
and
Appeal) Rules, 1999 has not been followed,
therefore, the final order passed by the
District
Basic
Education
Officer
on
30.12.2022 cannot sustain in the eyes of
law.

50. In view of the aforesaid
reasons, this writ petition is allowed. The
order dated 30.12.2022 passed by the District
Basic Education Officer, Basti is quashed.
Respondent No. 1 i.e. District Basic
Education Officer, Basti is directed to
reinstate the petitioner in service forthwith
and to pay his salary along with arrears."

17. Against the aforesaid, Special
Appeal Defective No.- 870 of 2023 (Basic
Shiksha Adhikari And Another vs. Uday
Pratap Singh And Another) was filed and
the same was dismissed vide order dated
19.01.2024. The relevant paragraphs are
quoted herein under :-

"10. Facts as have been noticed
above are not in issue. It remains undisputed
that respondent claimed compassionate
appointment in the year 2000 and was
offered such appointment in 2003. The father
of the respondent had clearly given an
affidavit wherein it was mentioned that he
was employed in the Education Department
of the State. From such material it can
clearly be deduced that the factum of the
father of the respondent being in Government
Service was a fact clearly made known to the
authorities and it can therefore not be
asserted by the appellant that there was any
fraud or misrepresentation made on part of
the respondent.

11. It is undisputed that the legality
of compassionate appointment offered to
respondent was challenged before the
authorities and after an appropriate inquiry,
the matter was dropped in the year 2013. A
PIL writ petition was also dismissed in that
regard in the year 2014. Though, the PIL was
also dismissed on the ground that it was not
entertainable in service matters, yet the
Division Bench did take note of the fact that
the appointment was made more than ten
years ago.

12. In such circumstances, we are
of
the
considered
opinion
that
the
compassionate appointment offered to the
respondent ought not to be interfered with
8 All. Shiv Kumar Vs. State of U.P. & Ors.
695
after 20 years when the fault in issuing
such appointment was attributed to the
Department itself. The view taken by the
learned Single Judge, therefore, is a
permissible view with which we find no
reasons to disagree. The equity clearly
stares against the appellants."

18. The matter went up to the Apex
Court wherein a Special Leave Petition
(Civil) Diary No.7348 of 2024 (Basic
Shiksha Adhikari, District Basti & Anr
vs. Uday Pratap Singh & Anr.) was filed
by the State and the same was dismissed
vide order dated 16.04.2024.

19. Similar controversy was also dealt
by this Hon'ble Court in Writ-A No.2058
of 2024 (Vishwaroop vs. State of U.P.
Thru. Addl. Chief Secy. Agriculture
Deptt. Lko. And 3 Others) which was
decided on 15.10.2024. In the aforesaid
case, the Court has held as under :-

"12. Hon'ble the Supreme Court
in
similar
circumstances
where
the
individual had obtained compassionate
appointment de hors the rules and his
appointment was set aside after a period of
15 years, it was held that the same was not
justified
in
terminating
such
an
appointment. The relevant paragraphs of
the judgment of the Supreme Court in the
case of Md. Zamil Ahmed Vs. The State of
Bihar & Ors., Civil Appeal No. 4815 of
2016) is quoted herein below:-

"14) Keeping in view the peculiar
undisputed facts of the case and having
regard to the totality of the circumstances,
we are of the considered view that the State
was not justified in terminating the
appellant's services. In other words, the
ground on which the appellant's services
were terminated by the State after a period
of 15 years of appellant's appointment does
not appear to be well founded. This we say
for the following reasons:

15) Firstly, the appellant and wife
of the deceased at the time of seeking
compassionate
appointment
did
not
conceal any fact and nor filed any false or
incorrect document/declaration. On the
other hand, both of them disclosed their
true
family
relations
and
conditions
prevailing in the deceased family on
affidavit.

16) Secondly, the appellant, who
is the brother of the deceased, undertook to
maintain the family of the deceased in the
event of his securing the compassionate
appointment and he accordingly also gave
such undertaking to the State."

13.
It
is
in
the
aforesaid
circumstances, this Court is also of the
considered
view
that
there
was
no
justification on the part of the State to have
woken up after a lapse of 12 years and
found infirmity in the appointment of the
petitioner and quashed the same. Further
there is no allegations that the petitioner
had concealed any material fact or some
fact was found out by the State after a
substantial length of time necessitating
termination of his services. Once a finding
has been recorded that the petitioner was
not responsible for suppression of any
material fact in securing his appointment
then the onus lay upon the State to have
examined the entire facts prior to giving
him
appointment
on
compassionate
grounds. For the lapse if any of the State
the services of the petitioner cannot be
terminated after a lapse of 12 years."

20. Against the aforesaid, Special
Appeal Defective No.- 93 of 2025 (State
696 INDIAN LAW REPORTS ALLAHABAD SERIES
of
U.P.
Thru.
Addl.
Chief
Secy.
Agriculture Deptt. Lko And 3 Others vs.
Vishwaroop)
was
filed
and
while
dismissing the Special Appeal of the State
vide order dated 04.03.2025, the Court has
held as follows :-

"13. We equally notice that the
erring
Officer
who
has
made
the
appointment was not proceeded against for
the wrong committed by him and it is in this
background that the respondent, who has
not concealed any fact in the application
made, is rather subjected to a severe
consequence. The State Government, in
such a situation, must visit the erring
Officials with a stern message in absence of
which, the decision taken against the
employee concerned does not appear to be
in good faith and does not appear to be the
right approach of rectifying the mistakes
committed by the Officers of the State
discharging
onerous
and
responsible
duties."

21. The learned counsel for the
petitioner has also placed reliance upon the
order passed in Writ-A No.-11785 of 2021
(Rahul vs. State of U.P. And 6 Others)
wherein while allowing the writ petition
vide order dated 18.04.2025, the Court has
held as follows :-

"2. By means of this petition filed
under Article 226 of Constitution of India,
the petitioner has challenged the order
dated 28.08.2021 whereby petitioner's
services have been dispensed with only
on
the
ground
that
while
seeking
compassionate appointment for his father
dying in harness on 01.02.2008, vide
application
dated
29.02.2008,
he
concealed this material fact that his
mother was already under Government
service.

10. Having heard learned counsel
for the respective parties and having
perused the record, I find that it is a case
where there was no prescribed format
provided
for
a
candidate
seeking
compassionate appointment to disclose
every detail of the family including the
status of each member of the family. It is
true that the affidavit was filed by the
mother of petitioner giving no objection in
favour of the petitioner and she might not
have disclosed the fact that she was a
Government employee but the family
register was before the authorities which
showed that the mother of the petitioner
who was a widow of late father of the
petitioner was very well in the employment.
I have perused the family register filed as
Annexure
No.2
that
discloses
the
petitioner's mother to be in service.

11. Besides the above, I may
observe
here
that
in
cases
of
compassionate appointment where the
family suffers mental shock due to sudden
death of bread earner of the family as in
this case the father, the family cannot go
into the technical niceties involved while
moving application for compassionate
appointment. It is a burden more upon the
authorities to carry out verification as to
the details of the family and its status. If the
authorities themselves failed to verify the
facts which was apparent on the fact of
record
then
person
appointed
on
compassionate basis could not be blamed
for concealing any such fact. It is well
established principle of law that fraud
being a matter of fact cannot be presumed
and so shall have to be proved by the party
taking plea of fraud. It is a duty cast upon
the authority to verify the records to look
into them minutely. If no format is
prescribed regarding disclosure of a
particular fact, then non-disclosure of such
8 All. Shiv Kumar Vs. State of U.P. & Ors.
697
fact cannot form a charge of misconduct.
Moreover, in matters of compassionate
appointment, which is permanent in nature,
employer if finds an employee to have
committed fraud in seeking appointment
then that charge should be established by
holding a full fledged enquiry under
discipline and appeal rules as may be
applicable to the establishment.

12.
In
these
facts
and
circumstances and also in so far as the
summary proceedings that have been
drawn in the matter of annulment of
employment of the petitioner, I find myself
in full agreement with the view of the coordinate Bench of this Court that a proper
procedure ought to have adopted. I also
find that the Division Bench as well as the
Supreme Court has very clearly held that
once the employment has been offered and
the facts were before the authorities, after
such a long gap of a decade or so such
appointment should not be annulled.
Looking to the facts that the family has
survived due to the earning of the petitioner
and petitioner also might have got married
and may also having a family absolutely
dependent upon him, subsequently I do not
find any justification for cancelling the
application of the petitioner."

22. He has also placed reliance upon
the case of Md. Zamil Ahmed v. State of
Bihar, reported in (2016) 12 SCC 342. The
relevant paragraphs are quoted herein
below :-

"11. Keeping in view the peculiar
undisputed facts of the case and having
regard to the totality of the circumstances,
we are of the considered view that the State
was not justified in terminating the
appellant's services. In other words, the
ground on which the appellant's services
were terminated by the State after a period
of 15 years of the appellant's appointment
does not appear to be well founded. This
we say for the following reasons:

11.3. Thirdly, there was no one in
the family of the deceased to claim
compassionate appointment except the
appellant who, as mentioned above, was
the close relative of the deceased i.e. real
younger brother and used to live with the
deceased. He was otherwise eligible to
claim such appointment being major,
educated and only male member in the
family.

13. The fact that the appellant
was the younger brother of the deceased
was within the knowledge of the State.
Similarly, the State was aware that the
brother does not fall within the definition of
"dependant" at the relevant time and still
the
State
authorities
obtained
the
undertaking from the appellant that he
would maintain the family of the deceased
once given the appointment."

23.
Thus,
on
the
aforesaid
submissions, impugned order is liable to be
quashed.

24.
Learned
counsel
for
the
respondents submits that there is no
illegality or infirmity in the impugned
order. It is contended that, following an
inquiry, the petitioner's appointment was
found to be in violation of the Dying-inHarness Rules, as framed under the
Government
Order
dated
04.09.2000,
which
governs
appointment
on
compassionate grounds. The said rules
expressly prohibit the appointment of a
dependent of a deceased employee if the
spouse of the deceased is already employed
in a government service. This restriction is
698 INDIAN LAW REPORTS ALLAHABAD SERIES
clearly stipulated under Rule 3(1) and Rule
5 of the applicable rules, as well as in the
aforementioned Government Order. It is
further submitted that the petitioner, by
concealing this material fact, secured
appointment in contravention of the rules,
rendering the appointment illegal and
unsustainable in law.

25. The counsel for the respondents
submits that in support of the no objection
affidavit, the declaration given by the
petitioner's mother as well as other family
members, does not disclose the fact that the
petitioner's mother was employed as an
Assistant Teacher at the Primary School,
Behrampur, Block Iglas. This amounts to a
clear act of concealment on the part of the
petitioner, as neither the petitioner, his
mother, nor any other family member
revealed that the petitioner's mother was a
government employee at the time of the
petitioner's father's demise.

26. In paragraph nos. 14 and 15 of the
counter affidavit, the respondents contend
that the entire proceedings were initiated
based on a complaint submitted by
Virendra Kumar Sharma, pursuant to which
a show-cause notice was issued to the
petitioner. However, the petitioner, in an
attempt
to
manipulate
the
process,
produced a forged signature purportedly of
the complainant, asserting that no such
complaint had ever been filed.

27. Emphasizing upon Rule 5 of the
Dying-in-Harness Rules, the Counsel for
the respondents submits that compassionate
appointment cannot be granted if the
spouse of the deceased employee is already
employed in a government job. In the
present case, the petitioner was appointed
on compassionate grounds despite the fact
that the petitioner's mother was serving in a
government post at the relevant time,
rendering the appointment irregular and in
contravention of the established rules.

28. Placing reliance upon a judgment
dated 15.10.2024 passed in Special Appeal
Defective No.506 of 2024 (Distt. Basic
Education Officer and Another vs. Smt.
Punita Singh and 3 Others) wherein order
passed by learned Single Judge in the case
of Smt. Punita Singh and 3 Others relating
to the petitioner therein, who had procured
appointment on the basis of forged
documents, which was allowed by the
Single Judge, has been set-aside.

29. He, therefore, contends that the
petitioner is not entitled to any relief in
view of the observations of the Court in the
aforesaid Special Appeal as he has sought
appointment by concealing material fact of
his mother being in government job at the
relevant point of time, therefore, his
appointment cannot stand.

30. In the aforesaid Special Appeal,
the Division Bench of this Court has held
as follows :-

"18. A Division Bench of this
Court in Zila Basic Shiksha Adhikari,
Balrampur Vs. Anand Kumar Tripathi
and others : 2024:AHC-LKO:37313-DB,
in
a
case
where
compassionate
appointment accorded to the respondent
therein, was terminated on account of
failure to produce relevant documents as
regard his parentage, etc., the Division
Bench, on the question whether in such
case show cause notice should be issued
and thereafter order of cancellation of
appointment should be passed or a full
fledged inquiry in terms of Rules of 1999
should be held followed by removal or
dismissal, came to the conclusion that
8 All. Shiv Kumar Vs. State of U.P. & Ors.
699
disciplinary proceedings are ordinarily
initiated if any misconduct has been
committed after joining service, therefore,
if the initial appointment itself was
fraudulent, then referring to the judgment
of
Hon'ble
Supreme
Court
in
R.
Vishwanatha Pillai Vs. State of Kerala
and others : (2004) 2 SCC 105, and Patna
High Court judgements in Ishwar Dayual
Sah Vs. State of Bihar : 1987 Lab IC390
and Rita Mishra Vs. Director, Primary
Education : 1988 Lab IC 907, came to the
following conclusion:

"12. Taking a cue from the ratio
of the decision of the Supreme Court, we
are of the opinion that if it is ultimately
found on inquiry referred earlier that the
opposite party no. 1 had practiced fraud or
deceit to obtain the appointment as already
discussed, then, it would be a case to
proceed for cancellation of appointment by
issuing a show cause notice for the said
purpose annexing the inquiry report and
material collected in such inquiry and then
considering the reply of the appointee in
this regard and taking a reasoned decision
after affording an opportunity of personal
hearing for cancellation of appointment
and not necessarily for dismissal or
removal of service, therefore, there is no
question of any inquiry to be held in terms
of Rules, 1999 as has already been held in
the aforesaid decision of the Supreme
Court.

13.
This
will
be
sufficient
observance of principles of natural justice.
It may also be pointed out that an employee
of Basic Education Department does not
have the benefit of Article 311 of the
Constitution of India as Article 311 of the
Constitution of India would not apply,
however, the relevant rules for disciplinary
proceedings for imposition of major
punishment such as removal, dismissal etc.
would apply, but, for the reasons aforesaid,
those will also not apply if on a fact finding
inquiry it is found that the appointment was
obtained by fraud, as already observed
hereinabove and thereafter the aforesaid
procedure is followed."

19. Recently, Hon'ble Supreme
Court in Union of India Vs. Prohlad Guha
etc.: 2024 SCC OnLine SC 1865, in a case
where the writ petitions filed by the
employees were allowed for not following
the Railway Servants (Discipline & Appeal)
Rules, 1968 and on coming to the
conclusion that qua a person in regular
service, the dismissal cannot take place
sans any disciplinary inquiry, while setting
aside the judgement, came to the following
conclusion:

"13. The impugned judgment is
liable to be set aside on a further ground,
since the requisite to establish eligibility
for compassionate appointment was not
properly fulfilled, they were appointed on
the basis of false claims and fabricated
documents. It then becomes imperative to
discuss what constitutes fraud and what is
its impact on an act afflicted by such vice.
R.M. Sahai, J. writing in Shrisht Dhawan
(Smt.) v. M/s. Shaw Brothers observed -

"20. Fraud and collusion vitiate
even the most solemn proceedings in any
civilised system of jurisprudence. It is a
concept descriptive of human conduct.
Michael Levi likens a fraudster to Milton's
sorcerer, Comus, who exulted in his ability
to, 'wing me into the easy-hearted man and
trap him into snares'. It has been defined as
an act of trickery or deceit. In Webster's
Third New International Dictionary fraud
in equity has been defined as an act or
omission to act or concealment by which
700 INDIAN LAW REPORTS ALLAHABAD SERIES
one person obtains an advantage against
conscience over another or which equity or
public policy forbids as being prejudicial to
another. In Black's Legal Dictionary, fraud
is defined as an intentional perversion of
truth for the purpose of inducing another in
reliance upon it to part with some valuable
thing belonging to him or surrender a legal
right; a false representation of a matter of
fact whether by words or by conduct, by
false or misleading allegations, or by
concealment of that which should have
been disclosed, which deceives and is
intended to deceive another so that he shall
act upon it to his legal injury. In Concise
Oxford Dictionary, it has been defined as
criminal
deception,
use
of
false
representation to gain unjust advantage;
dishonest artifice or trick. According to
Halsbury's
Laws
of
England,
a
representation is deemed to have been
false, and therefore a misrepresentation, if
it was at the material date false in
substance and in fact. ...From dictionary
meaning or even otherwise fraud arises out
of deliberate active role of representator
about a fact which he knows to be untrue
yet
he
succeeds
in
misleading
the
representee by making him believe it to be
true.
The
representation
to
become
fraudulent must be of a fact with knowledge
that it was false.

.....The colour of fraud in public
law or administrative law, as it is
developing, is assuming different shades. It
arises from a deception committed by
disclosure of incorrect facts knowingly and
deliberately to invoke exercise of power
and procure an order from an authority or
tribunal. It must result in exercise of
jurisdiction which otherwise would not
have
been
exercised.
That
is
misrepresentation must be in relation to the
conditions provided in a Section on
existence or non-existence of which power
can be exercised.

13.1. The words of Denning L.J.
in Lazarus Estates Ltd. v. Beasley are of
importance qua the impact of fraud. He
wrote -

".....I cannot accede to this
argument for a moment. No Court in this
land will allow a person to keep an
advantage he has obtained by fraud. No
judgment of a Court, no order of a
Minister, can be allowed to stand if it has
been obtained by fraud. Fraud unravels
everything. The Court is careful not to find
fraud unless it is distinctly pleaded and
proved; but once it is proved, it vitiates
judgment, contract and all transactions
whatsoever...."

13.2.
'Fraud'
is
conduct
expressed by letter or by word, inducing
the other party to take a definite stand as a
response to the conduct of the doer of such
fraud. [See; Derry v. Peek; Ram Preeti
Yadav v. U.P. Board of High School of
Intermediate Education]

13.3 In R. Vishwanatha Pillai v.
State of Kerala, a Bench of three learned
Judges observed that a person who held a
post which he had obtained by fraud, could
not be said to be holding a post within the
meaning of Article 311 of the Constitution
of India.