# Smt. Aasha Kumari v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 275
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-17
- **Bench:** Rakesh Tiwari, Dinesh Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-aasha-kumari-v-state-of-u-p-and-others-42119
- **Pages:** 5

## Headnote

Constitution of India, Article 226-Change
of Designation from sweeper to DaiC.M.O. Considering her experience as
Dai-sought guidelines from Director-who
taken
view
in
absence
of
Rule,
Regulation or G.O.-designation can not
be changed-Single Judge rightly declined
to interfere-appellant based her claim for
allotment of work of Dai as both sweeper
as well as Dai are group 'D' postmisconceived-appeal dismissed.

Held: Para 12

The appointments are strictly adhered
according
to
the
sanctioned
post.
Therefore, the Director General in his
order dated 21.8.2008 in this regard has
rightly observed that in absence of any
Rule or Regulation or Government Order
neither the post of designation can be
changed nor the service record could be
corrected by making any entry in this
regard. Once the order of the Director
General dated 21.8.2008 is upheld by us,
the consequential order dated 25.8.2008
passed
by
the
Chief
Medical
Superintendent
(Female)
Hospital
at
Agra would also be upheld. The appellant
has utterly failed to establish that her
designation could have been changed in
276 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
absence of any Rule or Regulation or
provisions or Government Orders. There
is no illegality or infirmity in the
impugned judgment and order, hence no
interference is required by this Court in it
in this appeal.

## Text

1 All] Smt. Aasha Kumari V. State of U.P. and others
275
order to deny payment of interest on
delayed payment of death cum post retiral
dues to the heirs of the deceased
employee.

8. After hearing learned counsel for
the parties, on perusal of record and for
all the reasons stated above, the Court is
of the view that learned counsel for the
appellant has not been able to show its
bonafide for not paying the retiral dues to
the petitioner-respondent in time, whereas
as per submission of learned counsel for
the petitioner-respondent, it is evident that
the department has knowingly delayed
payment of retiral dues. There is no
illegality or infirmity in the order
impugned passed in the writ petition
directing appellant to pay entire death
cum post retiral benefit. However, so far
as compound interest @ 10% from the
due date till the date of actual payment is
concerned, the Court find that Smt.
Satyabhama Devi- widow of the deceased
employee has been harassed and made to
run from pillar to post for getting death
cum post retiral benefit which shows
inhuman face of the appellant. Death cum
post retiral benefits are means of social
support and status of a government
employee so that he may not be thrown on
the road after death of bread earner. In
view of this, we uphold the award of
interest @ 10% as directed by learned
Single Judge, but this direction to pay
interest is confined to the facts and
circumstances of this case only and shall
not be treated as a precedent.

9.

The
special
appeal
is,
accordingly, dismissed with costs of
Rs.20,000/- on the appellant which is to
be paid within a period of one month from
today.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2012

BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE DINESH GUPTA,J.

Special Appeal No. - 1574 of 2008

Smt. Aasha Kumari

 ...Petitioner
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri Jai Narain

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-Change
of Designation from sweeper to DaiC.M.O. Considering her experience as
Dai-sought guidelines from Director-who
taken
view
in
absence
of
Rule,
Regulation or G.O.-designation can not
be changed-Single Judge rightly declined
to interfere-appellant based her claim for
allotment of work of Dai as both sweeper
as well as Dai are group 'D' postmisconceived-appeal dismissed.

Held: Para 12

The appointments are strictly adhered
according
to
the
sanctioned
post.
Therefore, the Director General in his
order dated 21.8.2008 in this regard has
rightly observed that in absence of any
Rule or Regulation or Government Order
neither the post of designation can be
changed nor the service record could be
corrected by making any entry in this
regard. Once the order of the Director
General dated 21.8.2008 is upheld by us,
the consequential order dated 25.8.2008
passed
by
the
Chief
Medical
Superintendent
(Female)
Hospital
at
Agra would also be upheld. The appellant
has utterly failed to establish that her
designation could have been changed in
276 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
absence of any Rule or Regulation or
provisions or Government Orders. There
is no illegality or infirmity in the
impugned judgment and order, hence no
interference is required by this Court in it
in this appeal.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard learned counsel for the
parties and perused the record.

2. This special appeal has been filed
challenging the validity and correctness of
the judgment and order dated 29.9.2008
passed in Civil Misc. Writ Petition No.
51205 of 2008, Smt. Asha Kumari versus
State of U.P. and others whereby the
aforesaid writ petition had been dismissed.

3. The facts culled out from the
record in a nut-shell are that the petitioner
was appointed as Sweeper on 15.2.2005 by
the Competent Authority after following
due procedure. On 8.5.2008 the appellant
being well qualified and having sufficient
experience of working as 'Dai' moved an
application before the Regional Joint
Director (Health) and Chief Medical
Superintendent, District Women Hospital,
Agra stating therein that the work 0.00"of
'Dai' be taken from her. Her application
having been approved and allowed by the
respondents, she was allowed to perform
her duties as 'Dai'. An entry to this effect
has been made in her service book by the
competent authority.

4. It is stated that thereafter in the
first week of September, 2008 the
appellant
got
knowledge
about
the
impugned orders dated 21.8.2008 and
25.8.2008 passed by the respondents by
which she was restrained from performing
the duties of 'Dai'. Therefore, the impugned
orders are illegal and void abinitio.

5. The instant special appeal has been
filed challenging the aforesaid impugned
order on the grounds that the posts of
Sweeper and 'Dai' are class IV post, both
are non-technical posts for which essential
qualification, salary and other emoluments
are the same; that merely by changing her
post from Sweeper to 'Dai' the status of
post would not change in the aforesaid
conditions; that the hospital where the
appellant is working is for females only
and work of 'Dai' is required more than the
work of Sweeper; that the appellant is
having experience of 'Dai' and is the
competent authority considering this fact
merely has changed her post from Sweeper
to 'Dai'. He has not committed any
illegality. It is also stated that that the
impugned order challenged in the writ
petition has been passed exparte without
affording any opportunity of hearing to the
appellant but this aspect has not been
considered in the impugned judgment and
order, hence the same being erroneous on
facts and in law, is liable to be quashed by
this Court.

6. It appears that on the application of
the appellant that she has experience of
'Dai' work of this post may be taken from
her instead of the work of Sweeper.
However, apart from taking work from her
on the post of 'Dai' her designation was
also changed to 'Dai' in her service record.
Therefore,
the
Chief
Medical
Superintendent, (Female) Hospital at Agra
by her letter dated 10.7.2008 sought
guidance from the Director General,
(Medical and Health Services), U.P. In
response thereof, the Director General U.P.
by his letter dated 21.8.2008 informed the
Chief Medical Officer that there are no
Government orders for changing the
designation of a class IV employee and
therefore, the order 31.5.2009 passed by
1 All] Smt. Aasha Kumari V. State of U.P. and others
277
the Chief Medical Superintendent, Agra
changing the designation of the appellant is
illegal. He therefore, directed that Smt.
Asha Kumari be shown as having been
appointed on her substantive post as
Sweeper in the service book i.e. the post on
which the appellant had been initially
appointed. The letter/order dated 21.8.2008
reads thus:-

^^izs"kd]

egkfuns'kd]

fpfdRlk ,oa LokLF; lsok;sa]

m0iz0A
lsok esa]

eq[; fpfdRlk v/khf{kdk]

efgyk fpfdRlky;] vkxjkA
i= la[;k&4Mh @ 1@95@08 @6420 y[kuÅ
fnukad 21-8-2008

fo"k;%& Jherh vk'kk] lQkbZ deZpkjh fd;k x;k in
ifjorZu fujLr fd, tkus ds laca/k esaA

egksn;k]

mi;qZDr
fo"k;d
d`i;k
vius
i=
la[;k&e0fp0@in ifjorZu@ p0ls0@2008@708]
fnukad 10-7-2009 dk lanHkZ xzg.k djus dk d"V djsa]
ftlds }kjk Jherh vk'kk] lQkbZ deZpkjh dk fd;k
x;k in ifjorZu ds lEcU/k esa ekxZn'kZu dh vis{kk
dh x;h gSA

mijksDr ds laca/k esa voxr djkuk gS fd prqFkZ
Js.kh ds in ifjorZu ls lEcfU/kr fdlh izdkj dk
'kklukns'k miyC/k ugha gS] blfy, rRdkyhu izeq[k
fpfdRlk v{khf{kdk }kjk fd;k x;k vkns'k fnukad 315-2009 fu;e fo:) gSA

vr% vkidks funsZf'kr fd;k tkrk gS fd Jherh
vk'kk lQkbZ deZpkjh dk fd;k x;k in ifjorZu
rRdky izHkko ls vius Lrj ls fujLr djkuk
lqfuf'pr djsa] rFkk d`r dk;Zokgh ls v/kksgLrk{kjh dks
Hkh voxr djkus dk d"V djsaA

mDr i= funs'kd 1⁄4iz'kklu1⁄2 dh lgefr ls
tkjh fd, tk jgs gSaA

Hkonh;&

 g0

 1⁄4vks0,l0rksej1⁄2

 la;qDr funs'kd 1⁄4ckyjksx1⁄2**

7. Accordingly, by order dated
25.8.2008, Chief Medical Superintendent,
(Female) Hospital at Agra informed the
appellant that in pursuance of the order
dated 21.8.2008 she would be working as
Sweeper on her post on which she was
appointed
that
order
of
charge
of
designation from Sweeper to 'Dai' was
cancelled and correction accordingly be
made in her service book. The order dated
25.8.2008 reads thus:-

^^dk;kZy;] eq[; fpfdRlk v/khf{kd] efgyk
fpfdRlky;] vkxjkA
fnukad 25-8-2008

vkns'k
vkns'k
vkns'k
vkns'k

egkfuns'kd] fpfdRlk LokLF; lsok;sa m0iz0
y[kuÅds iathd`r i= --------- 1@95@89@6420
fnukad 21-9-2009 ds }kjk Jherh vk'kk] lQkbZ
deZpkjh dk fn;k x;k in ifjorZu rRdky izHkko ls
fujLr fd;k tkrk gSA mDr dh izfo"Vh lEcfU/kr
deZpkjh dh lsok iqfLrdk esa vafdr dj nh tk;sA
Jherh vk'kk vius ewy in lQkbZ deZpkjh ds in ij
dk;Z djrh jgsxhaA

eq[; fpfdRlk v/khf{kdk

efgyk fpfdRlky;] vkxjkA

i`"Bkadu la[;k&e0fp0@p0Js0@in@ifj0@2008@
1116 fnukad vijksDrkuqlkj
izfrfyfi& fuEufyf[kr dks lwpukFkZ ,oa vko';d
dk;Zokgh gsrq izsf"krA

1- funs'kd] iz'kklu] fpfdRlk ,oa LokLF;
lsok;sa m0iz0 LFokLF; Hkou m0iz0 y[kuÅA

2- vij funs'kd] fpfdRlk LokLF; ,oa ifjokj
dy;k.k vkxjk e.My vkxjkA

3- ftyk vf/kdkjh egksn;] vkxjkA

4- vij ftyk vf/kdkjh 1⁄4uxj1⁄2 vkxjkA
278 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

5- izhkkjh vf/kdkjh] tu f'kdk;r] dYsDVjh]
vkxjkA

6- esV~u] efgyk fpfdRlky;] vkxjk dks bl
vk'k; ds lkFk i= dh izfr lEcfU/kr o deZp0kjh dks
vius Lrj ls izkIr djkuk lqfuf'pr djsaA

7- Jherh vk'kk] lQkbZ deZpkjh] efgyk
fpfdRlky;] vkxjkA**

8. It is these two orders dated
21.8.2008 and 25.8.2008 which have been
impugned in Civil Misc. Writ Petition No.
51205 of 2008. The aforesaid writ petition
was dismissed vide judgment and order
dated 29.9.2008. For ready reference it is
reproduced below.

" Heard learned counsel for the
petitioner as well as learned Standing
counsel for the respondents and have
perused the records.

The petitioner was appointed as
Sweeper. She claims that she be permitted
to work as Aaya ( maid) on which post she
has sufficient experience. The application
of the petitioner in this regard has been
rejected on the ground that there is no such
rule to permit a Sweeper to work as Aaya
(maid), learned counsel for the petitioner
has also, in this writ petition, not been able
to show any provisions or rule under which
a Sweeper can be asked to work as Aaya
(maid).

The
petitioner
was
selected
as
Sweeper and she could have had some
grievance if work of Sweeper was not
taken and some other work was being
taken. In the present case, the respondents
want the petitioner to work as Sweeper on
which post the petitioner had been
appointed and thus she cannot have any
such grievance.

The writ petition is dismissed."

9. It is in the aforesaid facts that
petitioner has sought relief of quashing the
impugned orders dated 21.8.2008 and
25.8.2008 (Annexures-1 and 2 to the writ
petition) passed by the respondents. The
petitioner has also prayed that a direction
may be issued to the respondents to
regularize his services on the post of 'Dai'
and she may be allowed to perform her
duties as 'Dai' without any interruption.

10. Sri Ashok Pal Singh ( A.P.
Singh), Advocate holding brief of Sri Jai
Narain, learned counsel for the appellant
has not advanced any oral arguments
except requesting the Court to notice the
grounds which have been taken in the
special appeal.

11. Learned Standing counsel
submits that the appellant may be having
experience of 'Dai' but she was initially
appointed on the post of Sweeper. He
submits that in absence of any rule or
regulation for change of designation of an
employee of Health department the
appellant cannot be designated as 'Dai' in
place of Sweeper. According to him, it is
wholly irrelevant that both the Sweeper
and 'Dai' are class IV posts having same
procedure
and
qualifications
for
appointment, also having emoluments and
salary and that by changing her designation
from Sweeper to 'Dai' would not change
her status. He has also refuted the grounds
relied upon by the learned counsel for the
appellant stating that the judgment of the
learned Single Judge is not erroneous on
facts and in law as the appellant has not
been able to establish any illegality or
infirmity in the impugned judgment on
facts and in law. Merely having experience
of 'Dai' would not entitle the appellant for
1 All] Paras Nath Yadav V. State of U.P. and others
279
change of her designation from the post of
Sweeper to post of 'Dai'.

12. After hearing learned counsel for
the parties we are of the opinion that
essential qualifications and procedures for
appointment on the post of Sweeper and
'Dai' are the same and what matter is that
the strength of the sanction post of 'Dai'
and Sweeper is distinct and separate.
Admittedly, also the petitioner has moved
an application for allowing her to work as
'Dai' but she has not moved any application
for changing her post from the post of
Sweeper on which she was initially
appointed and was working to the post of
'Dai'. She has also not made any request
for changing designation in her service
record in anticipation of her designation
being changed to the post of 'Dai' from the
post of Sweeper. No Rules or Regulations
or Government Orders provide for change
of designation in such matter for the simple
reason
that
sanction
strength
of
establishment consist of different posts and
if designation is changed according to the
whim of the authority, the sanction of post
would loose its importance for example if
the designation of the appellant is changed
as 'Dai' and an entry to this effect in her
service book is accordingly made, a post of
Sweeper would become vacant whereas
post of 'Dai' came into existence in excess
strength of post of 'Dai' sanctioned by the
Government. The appointments are strictly
adhered according to the sanctioned post.
Therefore, the Director General in his
order dated 21.8.2008 in this regard has
rightly observed that in absence of any
Rule or Regulation or Government Order
neither the post of designation can be
changed nor the service record could be
corrected by making any entry in this
regard. Once the order of the Director
General dated 21.8.2008 is upheld by us,
the consequential order dated 25.8.2008
passed
by
the
Chief
Medical
Superintendent (Female) Hospital at Agra
would also be upheld. The appellant has
utterly
failed
to
establish
that
her
designation could have been changed in
absence of any Rule or Regulation or
provisions or Government Orders. There is
no illegality or infirmity in the impugned
judgment and order, hence no interference
is required by this Court in it in this appeal.

13. For the reasons stated above, the
special appeal is accordingly, dismissed.
No order as to costs.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.03.2012

BEFORE
THE HON'BLE DINESH GUPTA,J.

Criminal Revision No. - 1758 of 2003

Paras Nath Yadav

 ...Petitioner
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri D.S. Pandey

Counsel for the Respondent:
Sri Sudeep Dwivedi
Sri Kamal Krishna
Sri Faraj Fazami
A.G.A.

Criminal Revision-under section 397 and
401 against order if acquitted-Power of
High
Court
explained-very
limited
particularly where revision preferred by
private person-no Govt. appeal filed
against acquittal-no illegality, perversity
or
wrong
appreciation
of
evidence
found-NO occasion for interference with
finding of facts recorded by Trail Court
found-revision rejected.