# Shri Sudhir Kumar v. The Union of India and Ors

- **Citation:** (2013) 3 ILRA 1480
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-11
- **Case number:** Civil Misc. Writ Petition No. 10967 of 2001
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-sudhir-kumar-v-the-union-of-india-and-ors-42730
- **Pages:** 7

## Headnote

Constitution
of
India,
Art.-226Compassionate Appointment-denied on
ground of undue delay in disposed of
claim-and
elder
son
of
deceased
employee was already in service-apart
from family pension by widow-held-in
3 All] Shri Sudhir Kumar Vs. The Union of India and Ors.
1481
view of law laid down by Apex Court in
Smt. Anju Misra case-if claim filed within
time-remain
pending
since
longappointment can not be denied-likewise
in absence of contraction by department
the elder son feeding the family can not
be basis for rejection-order quashed
direction for fresh consideration given.

Held: Para-12
It is also relevant to note that the petitioner
has
moved
the
application
for
compassionate appointment way back in the
year 1996 which was followed by reminders.
Thereafter, he filed a writ petition No. 35837
of 2000 which was disposed of by order
dated 22.8.2000 directing the respondents
to decide the petitioner's application within
two months. Pursuant to the said direction,
the respondent decided the petitioner's
application by the impugned order dated
4.12.2000 (Annexure-7). Challenging the
said order, the present writ petition has been
filed in the year 2001 which remained
pending for about twelve years and came to
be heard now. In view of these facts the last
submission
of
the
counsel
for
the
respondents that the claim of the petitioner
for compassionate appointment is belated, is
wholly misconceived and baseless. Such
stand cannot be taken in view of the fact
that this is not a ground in the impugned
order for rejection of petitioner's application.
In the case of Chief General Manager, SBI
Vs. Durgesh Kumar Tiwari reported in 2004
(5) AWC 4838, a Division Bench of this Court
followed earlier two judgments in Ajay
Kumar
Shebdy
Vs.
Chief
Security
Commissioner 2004 (2) UPLBEC 1503 and
Smt. Anju Mishra Vs. General Manager,
Kanpur 2004(1) UPLBEC 201 and held that if
the
application
for
compassionate
appointment was filed within time then
merely
because
the
applicant
was
unnecessarily dragged from pillar to post for
getting employment and for this cause
resulting in delay, he should not be denied
the appointment.

Case Law discussed:
2006(6) SCC 493; 2004(5) AWC 4838; 2001(2)
UPLBEC 1575; 2001(2) ESC 876; W.P. No.
37817 of 2001; 2011(4) SCC 209.

## Text

1480 INDIAN LAW REPORTS ALLAHABAD SERIES
back wages having a discretionary element
involved in it has to be dealt with, in the facts
and circumstances of each case and no straitjacket formula can be evolved, though,
however, there is statutory sanction to direct
payment of back wages in its entirety." In
para 9 thereof, it was observed that "it is not
for the High Court to go into the factual
aspects of the matter and there is an existing
limitation on the High Court to that effect."

14. In view of the above, the Court is of
the view that although the Labour Court was
justified in denying back wages for the period
up to the date of reference, on account of the
delay, but for the period commencing from
the date of reference up to the date of
reinstatement, before awarding the back
wages, the labour court ought to have address
itself to the issue as to whether the respondentworkman was gainfully employed or not
during the intervening period and then it ought
to have taken a decision, dependent on the
facts and circumstances, whether to award or
not to award the back wages and if so, to what
extent. As there is a serious lis between the
parties on this issue, which would require
assessment of evidence, the Court is of the
view that the said issue will have to be
remitted to the labour court for determination.

15. For the reasons aforesaid, the
award dated 14th July, 2006, which was
published
on
28th
September,
2006
(Annexure-'7' to the writ petition), is set aside
only to the extent of award of back wages.
The declaration in the award that the
termination of service of the respondentworkman on 01.03.1989 was illegal and
unjustified as well as the direction given in
the award to reinstate the respondentworkman, is affirmed. The issue with regards
to entitlement of the respondent-workman
for back wages, with effect from the date of
the reference up to the date of reinstatement,
is remitted back to the labour court, which
shall decide the same, in accordance with the
law, preferably, within a period of three
months from the date of production of
certified copy of this order, by either side.
Upon deciding the said issue, the labour
court would pass an award in respect thereto,
which will be treated as part of the earlier
award dated 14th July, 2006. It is made clear
that it will be open to the parties to lead their
respective evidence with regards to gainful
employment or otherwise of the respondentworkman, during the period between the date
of reference up to the date of reinstatement,
for the purpose of deciding the issue, which
is being remitted to the labour court.

16. The writ petition is partly
allowed to the extent indicated above.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.10.2013

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Civil Misc. Writ Petition No. 10967 of 2001

Shri Sudhir Kumar ...Petitioner
Versus
The Union of India and Ors..Respondents

Counsel for the Petitioner:
Sri Irshad Ali, Sri K.M. Asthana
Sri U.P. Singh, Sri Sanjay Misra

Counsel for the Respondents:
C.S.C., Sri K.C. Sinha, Sri K.M. Asthana, Sri
R.N. Mishra, Sri Rajesh Khare, Sri N.C. Nishad

Constitution
of
India,
Art.-226Compassionate Appointment-denied on
ground of undue delay in disposed of
claim-and
elder
son
of
deceased
employee was already in service-apart
from family pension by widow-held-in
3 All] Shri Sudhir Kumar Vs. The Union of India and Ors.
1481
view of law laid down by Apex Court in
Smt. Anju Misra case-if claim filed within
time-remain
pending
since
longappointment can not be denied-likewise
in absence of contraction by department
the elder son feeding the family can not
be basis for rejection-order quashed
direction for fresh consideration given.

Held: Para-12
It is also relevant to note that the petitioner
has
moved
the
application
for
compassionate appointment way back in the
year 1996 which was followed by reminders.
Thereafter, he filed a writ petition No. 35837
of 2000 which was disposed of by order
dated 22.8.2000 directing the respondents
to decide the petitioner's application within
two months. Pursuant to the said direction,
the respondent decided the petitioner's
application by the impugned order dated
4.12.2000 (Annexure-7). Challenging the
said order, the present writ petition has been
filed in the year 2001 which remained
pending for about twelve years and came to
be heard now. In view of these facts the last
submission
of
the
counsel
for
the
respondents that the claim of the petitioner
for compassionate appointment is belated, is
wholly misconceived and baseless. Such
stand cannot be taken in view of the fact
that this is not a ground in the impugned
order for rejection of petitioner's application.
In the case of Chief General Manager, SBI
Vs. Durgesh Kumar Tiwari reported in 2004
(5) AWC 4838, a Division Bench of this Court
followed earlier two judgments in Ajay
Kumar
Shebdy
Vs.
Chief
Security
Commissioner 2004 (2) UPLBEC 1503 and
Smt. Anju Mishra Vs. General Manager,
Kanpur 2004(1) UPLBEC 201 and held that if
the
application
for
compassionate
appointment was filed within time then
merely
because
the
applicant
was
unnecessarily dragged from pillar to post for
getting employment and for this cause
resulting in delay, he should not be denied
the appointment.

Case Law discussed:
2006(6) SCC 493; 2004(5) AWC 4838; 2001(2)
UPLBEC 1575; 2001(2) ESC 876; W.P. No.
37817 of 2001; 2011(4) SCC 209.
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. In this writ petition, the petitioner
has prayed for a writ order or direction in
the nature of certiorari to quash the
impugned
order
dated
4.12.2000
(Annexure-7) passed by the respondent
no.1.

2. On 17.1.2010, this Court passed
the following order :

"This writ petition relates to the
employee of the Defence Services as the
Tribunal has already been constituted and
in view of Section 34 of the aforesaid Act,
as such the file of this case be transmitted
to the Tribunal.

The office is directed to sent the file
to the Tribunal sitting at Lucknow within
a period of one month from today. This
order has been passed in the presence of
Shri
N.C.
Nishad,
learned
counsel
appearing for the respondents."

3. Pursuant to the afore quoted order
the records were sent to the Armed Forces
Tribunal Regional Bench, Lucknow and it
was numbered as T.A. No. 25 of 2010. Vide
order dated 20.8.2010, the Armed Forces
Tribunal Regional Bench, Lucknow remitted
back the records of the writ petition to this
Court on the ground that neither the father of
the applicant nor the applicant was himself
subject to Army Act, Navy Act 1957 or Air
force Act 1950 and as such this Tribunal has
no jurisdiction to adjudicate upon the dispute
raised in the petition. In these circumstances,
this writ petition was again listed in this
Court and is now being heard.

4. Briefly stated the facts of the present
case are that Sri Gandhi Prasad, father of the
petitioner was working on the post of
1482 INDIAN LAW REPORTS ALLAHABAD SERIES
Laboratory Attendant in the office of the
respondent no.3. He died on 15.5.1989 while
in service, leaving behind his wife Smt.
Chando Devi, two unmarried daughters and
two minor unemployed sons namely, Sri
Sudhir Kumar and Sri Ranjit and one major
son Sri Sunil Kumar who was already in
employment w.e.f. 26.2.1989 as
Lab
Attendant in the office of Controller of
Quality Assurance (PP), Kanpur and alleged
to be living separately. The case of the
petitioner is that at the time of death of his
father, he was minor and after he attained the
majority, an application dated 30.12.1996
followed by further applications dated
4.3.1997,
10.4.1997
and
25.11.1999
(Annexure Nos .1, 2, 4 and 5) respectively
were submitted before respondent no.1 for
compassionate appointment in accordance
with Rules/Government Orders. Since the
respondent no.1 did not consider the case of
the
petitioner
for
compassionate
appointment, the petitioner filed a Civil
Misc. Writ Petition No. 35837 of 2000
which was disposed of vide order dated
22.8.2000 directing the competent authority
to consider and dispose of the petitioner's
application dated 10.4.1997 and 25.11.1999
as early as possible preferably within a
period of two months from the date of
production of certified copy of the order.
Thereafter respondent no.1 considered the
application of the petitioner dated 10.4.1997
and 25.11.1999 and rejected the same by the
impugned order dated 4.12.2000 (Annexure
No.-7)on the following grounds :

" (i) The widow of the deceased
employee has been getting a family
pension of Rs. 484/- (pre - revised) per
month.

(ii) Following terminal benefits were
received immediately after the death of
the deceased i.e. DCRG Rs. 16,120,
CHEIS Rs. 10,958/-.

(iii) One son is already working as
Laboratory Attendant CQA (PP), Kanpur.
As an earning member of the family, he is
obliged to also look after his mother and
other members of his father's family,
more so when he has no other reported
responsibilities of his own.

(iv) With the support of one earning
member of the family and the benefits
given, the family would not be considered
to be in penury and without any means of
livelihood."

5. The petitioner and his mother have
been contending from the very beginning
that the eldest son Sri Sunil Kumar is living
separately and is not supporting the family
and as such after the death of Sri Gandhi
Prasad (father of the petitioner), there is no
one to support the family and they are in
extreme economic crisis and whatever
money was received on the death of the
father of the petitioner, the same was spent in
the marriage of one daughter. In the counter
affidavit
respondents
reiterated
and
supported the stand taken in the impugned
order dated 4.12.2000 (Annexure-7). There is
no dispute that the petitioner moved an
application for compassionate appointment
as aforementioned. In paragraph-15 of the
counter affidavit, it has been stated on behalf
of the respondent that the petitioner was not
found fit for compassionate appointment
under the norms of O.M. No. 14014/6/1994-
Est.(D) dated 9.10.1998 issued by the
Government of India, Ministry of Personnel,
Public Grievances and Pension (Department
of Personnel and Training) New Delhi,
which is the scheme of compassionate
appointment under the Central Government.
Paragraph -10 and 16 (c) of the aforesaid
3 All] Shri Sudhir Kumar Vs. The Union of India and Ors.
1483
O.M. dated 9.10.1998 are reproduced below
:

"10. Where there is an earning
member :

(a) In deserving cases even where
there is already an earning member in the
family, a dependent family member may
be
considered
for
compassionate
appointment with prior approval of the
Secretary of the Department/Ministry
concerned who, before approving such
appointment, will satisfy himself that
grant of compassionate appointment is
justified having regard to number of
dependants, assets and liabilities left by
the Government servant, income of the
earning member as also his liabilities
including the fact that the earning member
is residing with the family of the
Government servant and whether he
should not be a source of support to other
members of the family.

(b) In cases where any member of
the family of the deceased or medically
retired Government servant is already in
employment and is not supporting the
other members of the family of the
Government servant, extreme caution has
to be observed in ascertaining the
economic distress of the members of the
family of the Government servant so that
the
facility
of
appointment
on
compassionate
ground
is
not
circumvented and misused by putting
forward the ground that the member of
the family already employed is not
supporting the family.

16 (c) The scheme of compassionate
appointments was conceived as far beck
as 1958. Since then a number of welfare
measures have been introduced by the
Government
which
have
made
a
significant difference in the financial
position
of
the
families
of
the
Government
servants
dying
in
harness/retired on medical grounds. An
application
for
compassionate
appointment should, however, not be
rejected merely on the ground that the
family of the Government servant has
received the benefits under the various
welfare schemes. While considering a
request for appointment on compassionate
ground
a
balanced
and
objective
assessment of the financial condition of
the family has to be made taking into
account its assets and liabilities (including
the benefits received under the various
welfare schemes mentioned above) and
all other relevant factors such as the
presence of an earning member, size of
the family, ages of the children and the
essential needs of the family, etc."

6. I have heard Sri U.P.Singh,
Advocate holding brief of Sri Irshad Ali,
learned counsel for the petitioner and Sri
Rajesh Khare, learned counsel appearing
for the respondents and perused the
records.

Findings

7. Ground No. (i) and (ii) taken in the
impugned order to reject the application for
compassionate appointment of the petitioner
is wholly misconceived and in conflict with
para 16 (c) of the scheme of compassionate
appointment
which
provides
that
an
application for compassionate appointment
should not be rejected merely on the ground
that the family of the government servant has
received the benefits under the various
welfare schemes. In the case of Balbir Kaur
and another Vs. Steel Authority of India Ltd.
and others reported in 2000(6) SCC 493,
Para 13, the Hon'ble Supreme Court has
observed as under :-
1484 INDIAN LAW REPORTS ALLAHABAD SERIES

"the family benefit scheme cannot in
any way be acquitted with the benefit of
compassionate appointment. The stand
jerk in the family by the reason of the
death of bread earner can only be
observed by lump sum amount being
made available to the family. This is
rather unfortunate but this is a reality. The
feeling of security drops to zero on the
death of the bread earner and any security
thereafter, reigns and it is at that juncture
that if lump sum amount is made
available
with
a
compassionate
appointment, the grief stricken family
may find some solace to the mental agony
and manage its affair in the normal course
of events. It is not that monitory benefit
would be replacement of the bread earner
but that would undoubtedly bring solace
to the situation."

8. Thus the ground no. (i) and (ii)
taken in the impugned order to reject the
application
of
the
petitioner
for
compassionate appointment is wholly
misconceived and cannot be sustained.
This view taken by me is also fortified by
the law laid down by this Court in Chief
General Manager, State Bank of India Vs.
Durgesh Kumar Tiwari 2004 (5) AWC
4838, Ram Piyari VS. State Bank of India
2001 (2) UPLBEC 1575, State Bank of
India Vs. Ram Piyari 2001(2) ESC 876
and Smt. Padma Pathak Vs. Managing
Director, PNB in writ petition no. 37817
of 2001 decided on 3.3.2003 wherein it
has been held that payment of family
pension and dues of the deceased cannot
be a ground for rejecting the claim for
compassionate appointment.

9. The ground no. (iii) and (iv)
mentioned in the impugned order for
rejecting the application of the petitioner for
compassionate appointment is also without
any foundation of facts and enquiry in the
matter of support to the family by the eldest
son Sri Sunil Kumar who was already in
employment when the father of the petitioner
died. The stand of the petitioner from the
very beginning is that Sri Sunil Kumar is
living separately and he does not support his
mother, two sisters and two brothers. Para 10
(reproduced above) of the scheme of
compassionate appointment as filed and
relied by the respondents itself clearly
provides that even where there is already an
earning member in the family, a dependent
family member may be considered for
compassionate
appointment
with
prior
approval
of
the
Secretary,
Department/Ministry concerned, who before
approving such appointment will satisfy
himself
that
grant
of
compassionate
appointment is justified having regard to the
number of dependants, assets and liabilities
left by the government servant, income of the
family member as also his liabilities
including the fact that family member is
residing with the family of the government
servant whether he should not be a source of
support to other members of the family and
where he is not supporting the other
members of the family of the government
servant extreme caution has to be observed in
ascertaining the economic distress of the
members of the family of the government
servant so that the facility of appointment on
compassionate ground is not circumvented
and misused by putting forward the ground
that the member of the family already
employed is not supporting the family.

10. Perusal of the impugned order
would show that none of the guiding factors
as provided in paragraph-10 of the scheme
and discussed above have been considered
by the respondent no.1 and nothing relevant
has been even discussed or mentioned in the
impugned
order
while
rejecting
the
3 All] Shri Sudhir Kumar Vs. The Union of India and Ors.
1485
application of the petitioner on the ground
that his elder brother is an earning member.
The respondents have also completely
ignored the clear stand of the petitioner and
his mother right from the beginning that Sri
Sunil Kumar the eldest son of the deceased
came in employment during the lifetime of
his father and was living separately and is not
supporting the family. In the impugned
order, it has been merely observed that Sri
Sunil Kumar is obliged to also look after his
mother and other members of his father's
family. The respondents have not recorded
any finding that Sri Sunil Kumar, the eldest
son of the deceased is actually supporting his
mother and other members of his father's
family. Thus, in view of paragraph-10 of the
scheme of compassionate appointment, the
grounds no. (iii) and (iv) of the impugned
order taken for rejecting the application of
the
petitioner
for
compassionate
appointment,
are
wholly
arbitrary,
misconceived and cannot be sustained.

11. The law of compassionate
appointment is well settled. In a recent
judgment in the case of Bhawani Prasad
Sonkar Vs. Union of India and others
reported in 2011 (4) SCC 209, para 20, the
Hon'ble Supreme Court observed as under :

"20. Thus, while considering a claim
for
employment
on
compassionate
ground, the following factors have to be
borne in mind:

(i)
Compassionate
employment
cannot be made in the absence of rules or
regulations issued by the Government or a
public authority. The request is to be
considered strictly in accordance with the
governing scheme, and no discretion as
such is left with any authority to make
compassionate appointment dehors the
scheme.

(ii) An application for compassionate
employment must be preferred without
undue delay and has to be considered
within a reasonable period of time.

(iii)
An
appointment
on
compassionate ground is to meet the
sudden crisis occurring in the family on
account
of
the
death
or
medical
invalidation of the bread winner while in
service.
Therefore,
compassionate
employment cannot be granted as a matter
of course by way of largesse irrespective
of
the
financial
condition
of
the
deceased/incapacitated employee's family
at the time of his death or incapacity, as
the case may be.

(iv) Compassionate employment is
permissible only to one of the dependants
of the deceased/incapacitated employee,
viz. parents, spouse, son or daughter and
not to all relatives, and such appointments
should be only to the lowest category that
is Class III and IV posts."

12. I have already discussed in detail
the relevant provisions of the scheme of
compassionate appointment referred and
relied by the respondents themselves in the
counter affidavit and came to the conclusion
that the grounds of rejection in the impugned
order are wholly unsustainable in view of
paragraphs 10 and 16 (c) of the scheme of
compassionate appointment. It is also relevant
to note that the petitioner has moved the
application for compassionate appointment
way back in the year 1996 which was
followed by reminders. Thereafter, he filed a
writ petition No. 35837 of 2000 which was
disposed of by order dated 22.8.2000 directing
the respondents to decide the petitioner's
application within two months. Pursuant to
the said direction, the respondent decided the
petitioner's application by the impugned order
dated 4.12.2000 (Annexure-7). Challenging
1486 INDIAN LAW REPORTS ALLAHABAD SERIES
the said order, the present writ petition has
been filed in the year 2001 which remained
pending for about twelve years and came to
be heard now. In view of these facts the last
submission of the counsel for the respondents
that the claim of the petitioner for
compassionate appointment is belated, is
wholly misconceived and baseless. Such stand
cannot be taken in view of the fact that this is
not a ground in the impugned order for
rejection of petitioner's application. In the case
of Chief General Manager, SBI Vs. Durgesh
Kumar Tiwari reported in 2004 (5) AWC
4838, a Division Bench of this Court followed
earlier two judgments in Ajay Kumar Shebdy
Vs. Chief Security Commissioner 2004 (2)
UPLBEC 1503 and Smt. Anju Mishra Vs.
General Manager, Kanpur 2004(1) UPLBEC
201 and held that if the application for
compassionate appointment was filed within
time then merely because the applicant was
unnecessarily dragged from pillar to post for
getting employment and for this cause
resulting in delay, he should not be denied the
appointment.

13. In view of the discussions made
above, the writ petition succeeds and is hereby
allowed. The impugned order dated 4.12.2000
(Annexure-7) passed by the respondent no.1 is
set aside. The matter is remitted back to the
respondent no.1 with direction to reconsider
the application of the petitioner and pass
appropriate order in accordance with law in
the light of the observations made above,
within a period of two months from the date a
certified copy of this order is filed by the
petitioner before him.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2013

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI,J.
Civil Misc. Writ Petition No. 12574 of 2013

Narendra Kumar Singh ...Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Nisheeth Yadav

Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Service Lawfull pension-interim pension given on
ground-against the adverse entry-appellate
authority will set-a-side the order liberty
given
to
initiate
fresh
departmental
proceeding-against charge sheet in criminal
proceeding-hence interim pension-held-no
G.O.
or
circular
provides
withholding
pension-while Hon'ble High Court already
given protection from taking coercive
action-held-entitled for full pension.

Held: Para-15
We have also perused the Government Order
dated 28.10.1980, annexure-CA-1 to the
counter affidavit, which has been made basis
for withholding the part of the pension and
allowing
the
interim
pension.
This
Government Order provides the payment of
interim pension where the departmental
proceeding are pending. None of the circular,
Government Order or any provision has been
referred before us, which provides that
where
no
departmental
proceeding
is
pending, still the pension can be withheld.
Case Law discussed:
2007(10) ADJ, 561; 2009(7) ADJ 379; 2012(1)
ESC, 57(Alld.); AIR 1971 SC 1409; (1983) 1
SCC 305; 2005(5) SCC 245.

(Delivered by Hon'ble Rajes Kumar, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.

2. By means of the present writ
petition, the petitioner is challenging the
order dated 07.01.2013 passed by the
Inspector General of Police, Department