# Smt. Anara Devi v. Ayukt Khadya Evam Rasad & Ors

- **Citation:** (2014) 2 ILRA 541
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-05-30
- **Case number:** Service Single No. 642 of 2008
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anara-devi-v-ayukt-khadya-evam-rasad-ors-42792
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Retirement
benefits-denied
on
ground-even
on
compassionate ground appointment beingadhoc in nature-can not be taken into
consideration-as regularization period less
than 10 years of qualifying service-pension
not
payable-held-misconceivedcompassionate appointment being regular
542 INDIAN LAW REPORTS ALLAHABAD SERIES
in nature-can not be treated as adhoc
appointment-entitled for pension.

Held: Para-14
Admittedly, the petitioner was appointed
under the Dying in Harness Rules. The
fact that the initial appointment of the
petitioner was made on ad-hoc and
temporary basis, and by a subsequent
order the services of the petitioner were
alleged to have been regularized, is of no
consequence. For all practical purposes,
the appointment of the petitioner under
the Dying in Harness Rules has to be
treated to be a permanent appointment.

Case Law discussed:
(1994) 4 SCC 138; 1999(3) UPLBEC 2263;
(2007) 25 LCD 469.

## Text

2 All] Smt. Anara Devi Vs. Ayukt Khadya Evam Rasad & Ors.
541
the courts should not interfere with the
administrator's decision unless it was
illogical or suffers from procedural
impropriety or was shocking to the
conscience of the court. The department
moved ahead to charge the appellantpetitioner in pursuance of complaint
submitted by his own first wife and
factum of remarriage has not been denied
by the appellant-petitioner. Accordingly,
the appellant-petitioner has been punished
in pursuance to 1956 Rules (supra).

20. We have been informed that at
later stage the appellant-petitioner's wife
has withdrawn the complaint but it does
not seem to make out a case to dilute the
decision
taken
by
the
disciplinary
authority. The entire allegation against the
appellant-petitioner was raised by his own
wife being aggrieved with his second
marriage. Any withdrawal of complaint,
at later stage, shall not dilute the merit of
the case, since under Rule 29, the action
of the appellant-petitioner constitutes a
case of misconduct, which is also
punishable under Section 494 of I.P.C.

21. Once the wife brought into
notice of the authorities with regard to
second
marriage
of
the
appellantpetitioner, then at later stage, ordinarily
any
application
moved
by
the
complainant-wife does not seem to make
out a case for interference with the
decision of the disciplinary authority.

22. Any liberty given by the courts or
interference with such matters, may result
with ill consequence in due course of time or
may break the discipline in police force. It is
not a case where misconduct has been
committed by not an ordinary government
servant. Being a member of disciplined
police force, it is always expected that such
person shall be abide law and in case, a
member of the police or Armed forces is
permitted to break the law and abuse the
powers conferred by the statutes, it shall send
a wrong message to the society.

23. In view of above, we are not
inclined to interfere with impugned order
passed by Hon'ble Single Judge. The
appeal,
being
devoid
of
merit,
is
dismissed accordingly.

24. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.05.2014

BEFORE
THE HON'BLE RAKESH SRIVASTAVA, J.

Service Single No. 642 of 2008

Smt. Anara Devi... Petitioner
Versus
Ayukt Khadya Evam Rasad & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri S.P. Dubey

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Retirement
benefits-denied
on
ground-even
on
compassionate ground appointment beingadhoc in nature-can not be taken into
consideration-as regularization period less
than 10 years of qualifying service-pension
not
payable-held-misconceivedcompassionate appointment being regular
542 INDIAN LAW REPORTS ALLAHABAD SERIES
in nature-can not be treated as adhoc
appointment-entitled for pension.

Held: Para-14
Admittedly, the petitioner was appointed
under the Dying in Harness Rules. The
fact that the initial appointment of the
petitioner was made on ad-hoc and
temporary basis, and by a subsequent
order the services of the petitioner were
alleged to have been regularized, is of no
consequence. For all practical purposes,
the appointment of the petitioner under
the Dying in Harness Rules has to be
treated to be a permanent appointment.

Case Law discussed:
(1994) 4 SCC 138; 1999(3) UPLBEC 2263;
(2007) 25 LCD 469.

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

1. Sri Banwari Lal, the husband of the
petitioner and an employee of the opposite
parties, unfortunately died in harness. After
the death of Sri Banwari Lal, by an order
dated 05.09.1985 passed by the Regional
Food Controller, Faizabad Region, Faizabad,
the petitioner was appointed, on ad-hoc and
temporary basis, to the post of Watchman
under The Uttar Pradesh Recruitment of
Dependents of Government Servants Dying
in Harness Rules, 1974 ("Dying in Harness
Rules") and was posted at Bahraich Center. It
was stated in the appointment order that
since the petitioner was appointed on
absolutely ad hoc and temporary basis, the
services of the petitioner were liable to be
terminated at any time, without notice.

2. In pursuance of her appointment
order, the petitioner joined the department
and started working. After completing ten
years of service, by an order dated
30.04.1998, the services of the petitioner,
along with other employees mentioned in
the said order, were regularized. The
petitioner continued to work in the
department till she attained the age of
superannuation on 30.09.2005. After her
superannuation, the petitioner requested
the opposite parties to pay to her the
retiral dues to which she was entitled
under law. On the representation made by
the petitioner, the petitioner was paid
Group Insurance, leave encashment etc.
Insofar as the pension was concerned, the
same was denied to the petitioner on the
ground that the petitioner had not
completed ten years of "qualifying
service" in order to enable the petitioner
to claim pension. This led to the filing of
the present writ petition.

3. The learned counsel for the
petitioner
has
submitted
that
the
appointment under the Dying in Harness
Rules
is
necessarily
a
regular
appointment. He has submitted that the
entire period from the date of initial
appointment i.e. 05.09.1985 till the
petitioner
attained
the
age
of
superannuation on 30.09.2005, had to be
taken into account while computing
"qualifying service" for the purposes of
grant of pension. 2

4. On the other hand, the learned
Standing Counsel has submitted that the
service rendered by the petitioner on adhoc basis could not be taken into account
while computing the "qualifying service"
for the purposes of payment of pension
and since the petitioner had less than eight
years of regular service to her credit, the
petitioner was not entitled to pension.

5. Heard Sri S.P. Dubey, learned
counsel for the petitioner and the learned
Standing Counsel.

6. The short question to be answered
in the present writ petition is as to
2 All] Smt. Anara Devi Vs. Ayukt Khadya Evam Rasad & Ors.
543
whether
compassionate
appointment
under the Dying in Harness Rules could
be made on ad-hoc, temporary or daily
wage basis or appointment under the said
Rules is a permanent appointment.

7. It is settled that appointment in
public services are to be made strictly in
accordance with merit and in accordance
with the procedure provided in the rules.
However,
compassionate
appointment
under the Dying in Harness Rules is an
exception to the general rule. When an
earning member of a family unexpectedly
passes away, his whole family is
subjected to misery and privation. To
mitigate the hardship caused on account
of sudden change in the status and affairs
of the family and to save the family of the
deceased
government
servant
from
destitution, the concept of compassionate
appointment has been carved out.

8.
The
object
of
compassionate
appointment has been succinctly stated in the
case reported in (1994) 4 SCC 138, Umesh
Kumar Nagpal v. State of Haryana. At page
139 of the said report, the Apex Court has
made the following observations:-

"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 3 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."

9. The Dying in Harness Rules have
been
made
in
exercise
of
the
powerconferred by the proviso to Article
309 of the Constitution of India with the
object of providing employment to one
member of the deceased government
servant in order to enable the family of
the deceased to overcome the sudden
financial crisis it finds itself facing.

10. The object of the Rules can be
achieved only if the appointment under
the rules is permanent in nature. An
appointment made on ad-hoc, temporary
or daily wage basis has no security of
tenure. Such an appointment can be
terminated at any point time, with or
without
notice.
Compassionate
appointment under the Rules, obviously,
has to carry some security of tenure or
else it would frustrate the very object of
the
scheme
for
compassionate
appointment.
The
scheme
for
compassionate
appointment
is
a
rehabilitation scheme and the security of
tenure is inherent in an appointment made
under the said scheme.

11.
The
question
whether
an
appointment under the Dying in Harness
Rules is a permanent appointment or a
544 INDIAN LAW REPORTS ALLAHABAD SERIES
temporary appointment came up for
consideration before the Division Bench
of this Court in the case reported in 1999
(3) UPLBEC 2263, Ravi Karan Singh vs.
State of Uttar Pradesh and the Division
Bench concluded as follows:-

"1. This petition has come up before
us on a reference made by the learned
single Judge by his order dated 1
9.12.1997. The point involved is very
simple, that is, whether an appointment
under the Dying-in-Harness Rules is a
permanent appointment or a temporary
appointment. According to the learned
single Judge, this Court had earlier held
that an appointment under Dying - in -
Harness
Rules
is
a
permanent
appointment vide Budhi Sagar Dubey v.
D. I. O. S., 1 993 ESC 21 ; Gulab Yadau
u. State of U. P. and others, 1 991 (2)
UPLBEC 9 95 and Dhirendra Pratap
Singh v. D. I. O .S. and others, 1 991 (1) 4
UPLBEC 427. The learned single Judge
who passed the referring order dated j 1
9.12.1997 disagreed with the above
mentioned decisions and hence has
referred the matter to a larger Bench.

2. In our opinion, an appointment
under the Dying-in- Harness Rules has to
be treated as a permanent appointment
otherwise if such appointment is treated to
be a temporary appointment, then it will
follow that soon after the appointment,
the service can be terminated and this will
nullify the very purpose of the Dying-inHarness Rules because such appointment
is intended to provide immediate relief to
the family on the sudden death of the
bread earner. We, therefore, hold that the
appointment
under
Dying-in-Harness
Rules is a permanent appointment and not
a temporary appointment, and hence the
provisions
of
U.
P.
Temporary
Government Servant (Termination of
Services) Rules. 1975 will not apply to
such appointments.

3. The petition is disposed of
accordingly."

12. It is, thus, clear that an
appointment under the Dying in Harness
Rules is a permanent appointment. It is
not open to the opposite parties to make
an appointment under the Dying in
Harness Rules on ad-hoc, temporary or
daily wage basis.

13. In the case reported in (2007) 25
LCD 469, Kishan Lal vs. State of U.P. &
Ors. this Court came to the rescue of
Kishan Lal, who was appointed under the
Dying in Harness Rules on daily wage
basis, by directing the opposite parties in
the said case, to pass a fresh order
appointing
Kishan
Lal,
as
regular
employee in the same cadre from the
initial date of recruitment with all
consequential benefits. Paragraph 4 of the
said report is being quoted below:-

"4. In view of settled provisions of
law appointment of the petitioner as daily
wager seems to be not sustainable.
Accordingly, a writ in the nature of
mandamus is issued commanding the
opposite parties to pass fresh order
appointing the petitioner from the initial
date of his recruitment as regular
employee in the same cadre with all
consequential benefits keeping in view
the observation made hereinabove."

14. Admittedly, the petitioner was
appointed under the Dying in Harness Rules.
The fact that the initial appointment of the
petitioner was made on ad-hoc and
temporary basis, and by a subsequent order
2 All] Barkai and Others Vs. Mahmood Khan & Ors.
545
the services of the petitioner were alleged to
have been regularized, is of no consequence.
For all practical purposes, the appointment of
the petitioner under the Dying in Harness
Rules has to be treated to be a permanent
appointment.

15. In view of the discussion made
above, the writ petition is allowed with
cost quantified at Rs 3000. The petitioner
is held entitled to the grant of pension
with effect from October, 2005. The
opposite parties are directed to compute
and pay to the petitioner, her outstanding
retiral dues including pension, to which
she is entitled under law, treating the
petitioner to have been substantially
appointed w.e.f. 05.09.1985, the date of
her initial appointment. The petitioner
shall also be entitled to interest @ 8% per
annum on the arrears from October, 2005
till the time of its actual payment. The
payment shall be made within a maximum
period of three months from the date of
receipt of a certified copy of this order.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2014

BEFORE
THE HON'BLE ANIL KUMAR, J.

Second Appeal No. 940 of 1978

Barkai and Others......... Petitioners
Versus
Mahmood Khan & Ors. ... Respondents

Counsel for the Petitioners:
Sri H.S. Sahai, Sri U.S. Sahai

Counsel for the Respondents:
B.K. Srivastava

(A)C.P.C.-Section-100- Second Appealsubstantial question of law?-explainedmust be debatable-not settled by law of
land-apart from having material bearing.

Held: Para-18
In the case of Santosh Hazari V. Purshottam
Tiwari reported in 2001 (92) RD 336 (SC)
had held that a point of law which admits of
no two opinions may be preposition of law
but cannot be a substantial question of law.
To be 'substantial' a question of law must
be debatable, not previously settled by law
of the land or a binding precedent, and
must have a material bearing on the
decision of the case, if answered either
way, in so far as the rights of the parties
before it are concerned. If will, therefore,
depend on the facts and circumstances of
the each case whether a question of law is
substantial one and involved in the case or
not. The same view has been expressed
again by the Apex Court in the case of
Govinda Raju Vs. Marriamman 2005 (98)
RD 731.

(B)U.P.Z.A. & L R Act-Section-9- person
found possession on date of vesting can
claim benefit of presumption-admittedly
purchase
of
land
n
question
from
zamindar after date vesting-can not get
any benefit-court below rightly not given
any benefit-can not be interfered under
second appeal-in absence of substantial
question of law.

Held: Para-12
In addition to the above said facts, the
trial court has also given a finding that
the allegation that defendant-appellant
became owner of the land in dispute u/s
9 of U.P.Z.A.&L.R. Act is also not proved
because
defendants-appellants
have
failed in proving that they were in
possession of the disputed land on the
date when U.P.Z.A.&L.R. Act came into
force. Therefore, defendants-appellants
could not get any title over the land in
dispute u/s. 9 of U.P. Z. A. & L. R. Act, so
the
argument
advanced
by
learned
counsel for the appellant has no forced
and rejected.

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