# Smt. Asha Rani v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 780
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-08
- **Case number:** Civil Misc. Writ Petition No. 51944 of 2006
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-asha-rani-v-state-of-u-p-and-others-42154
- **Pages:** 8

## Headnote

Constitution
of
India,
Article
226compassionate
appointment-earlier
petitioner given consent to appoint his
son-subsequently considering his bad
habits not loyal to family-she claimed
appointment for herself-remain pending
for more than 3 years-suddenly rejection
on ground of delay-not proper.

Held: Para 14

The Authority concerned is directed to
consider the case of petitioner on merit
and while considering so the competent
authority shall examine as to whether
the
family
of
deceased
employee
continues to be under financial distress
and hardship and the family of deceased
employee cannot be relieved from such
financial hardship and distress unless the
compassionate appointment is offered to
2 All] Smt. Asha Rani V. State of U.P. and others
781
the petitioner. It is needless to say that
while
taking
such
decision
the
competent authority shall pass reasoned
and speaking order. Such exercise shall
be completed within a period of two
months from the date of production of
certified copy of the order passed by this
court before competent authority.
Case law discussed:
2009 (2) LBESR 482 (Alld); 1998 (5) SCC
192=AIR 1998 SC 2230; 2010 (7) ADJ Page 1

## Text

780 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
training certificate within five years of
his appointment otherwise he would be
paid the initial salary only. There was
thus no restriction on the management of
a Junior School in appointing an
untrained teacher permanently. Pati Ram
having been appointed permanently, as
is clear from his appointment order,
after the Government Order of 10.3.1971
had been issued his appointment was in
accordance with law it was neither
irregular nor illegal. Training became
essential
qualification
under
Rules,
1978. The appointment of petitioner,
however, being prior to it and in
accordance with law in force on the date
of his appointment it did not suffer from
any defect. In Rikhi Pal Singh vs. District
Basic Education Board, Allahabad, 1990
UPLBEC 351, it has been held by this
Court that the provisions in 1978 Rules
were
not
retrospective
therefore
appointment of an untrained teacher
prior to these rules could not be
terminated. These rules did not in any
manner effect the appointments made
after Government Order of 1971. An
untrained teacher, therefore, could be
appointed permanently between 1971
and 1978. The appointment letters of all
the petitioners clearly show that their
appointment was permanent."

13. Thus in view of the settled legal
position that where such appointments
between 1971 to 1978 could not be said
to be erroneous only because the only
qualification possessed by the Assistant
Teacher was Intermediate and approval
had not been obtained from the District
Basic Education Officer.

14. In my opinion, the impugned
order dated 12.6.2008 is absolutely
illegal and erroneous and cannot survive.
The writ petition is allowed and the
impugned order dated 12.6.2008 is,
therefore, quashed. Respondents no.1
and 2 will take take steps for payment of
salary to the petitioner within a period of
three months from the date a certified
copy of this order is received by them.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2012

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 51944 of 2006

Smt. Asha Rani

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

Counsel for the Petitioner:
Sri Jagdish Pathak
Sri Sanjay K. Sharma

Counsel for the Respondents:
C.S.C.,
Sri ripendra Mishra

Constitution
of
India,
Article
226compassionate
appointment-earlier
petitioner given consent to appoint his
son-subsequently considering his bad
habits not loyal to family-she claimed
appointment for herself-remain pending
for more than 3 years-suddenly rejection
on ground of delay-not proper.

Held: Para 14

The Authority concerned is directed to
consider the case of petitioner on merit
and while considering so the competent
authority shall examine as to whether
the
family
of
deceased
employee
continues to be under financial distress
and hardship and the family of deceased
employee cannot be relieved from such
financial hardship and distress unless the
compassionate appointment is offered to
2 All] Smt. Asha Rani V. State of U.P. and others
781
the petitioner. It is needless to say that
while
taking
such
decision
the
competent authority shall pass reasoned
and speaking order. Such exercise shall
be completed within a period of two
months from the date of production of
certified copy of the order passed by this
court before competent authority.
Case law discussed:
2009 (2) LBESR 482 (Alld); 1998 (5) SCC
192=AIR 1998 SC 2230; 2010 (7) ADJ Page 1

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. Heard learned counsel for the
parties.

2. By this petition, the petitioner
has sought initially a writ of mandamus
commanding the respondents to give her
compassionate appointment in place of
her husband Shyam Veer Singh under
Dying-in-harness
Rules.
But
subsequently a writ of certiorari for
quashing the order dated 27.6.2006
passed by Assistant General Manager of
Corporation contained in Annexure-CA2 of the counter affidavit and Annexure1 of the supplementary affidavit filed in
support
of
amendment
application,
whereby the petitioner's claim for
compassionate appointment has been
rejected, is also sought for.

3. The relief sought in the writ
petition rests on facts that the husband
of petitioner Late Shyam Veer Singh
while working as Messenger/Sandesh
Wahak in the District Office of Food
Corporation of India, Moradabad has
died on 11.10.2002 while in service. He
left behind him the petitioner as widow
and his three daughters and two sons i.e.
Sri Anil Kumar Singh and Sri Amit
Kumar Singh as his heirs and also his
old and sick mother. It is stated that
both two sons of petitioner are still
unemployed and the family of the
petitioner is totally on the verge of
starvation as no body in the family is
earning hand and there is no money for
the treatment of the old mother of her
late husband. After the death of Shyam
Veer Singh the petitioner gave her
consent for compassionate appointment
of her son Amit Kumar Singh under
Dying-in-harness Rules and as such an
application
was
made
for
such
appointment on behalf of her aforesaid
son on 26.12.2002 as class IV employee
in the department. Later on under
frustration, the conduct of Amit Kumar
Singh towards the family and the
petitioner became very bad and he
indulged in bad activities as he was not
appointed under dying in harness rules
by the respondent. At this point of time
the petitioner realized that even if the
son of the petitioner gets compassionate
appointment in place of her husband,
the sole purpose of providing such
appointment will not be fulfilled as her
son was no more loyal to the family as
well as to the petitioner and as such the
family of the deceased will not be
benefited on such appointment. Then
the petitioner gave application dated
23.8.2004 for her own appointment to
the respondent no.2 in place of her late
husband. A photostat copy of such
application dated 23.8.2004 is on record
as Annexure-1 to the writ petition.

4. It is further stated that the forms
and application of the petitioner was
forwarded to the respondent no.1 by the
Assistant
Manager
(Pension)
Food
Corporation
of
India,
Moradabad.
Thereafter the petitioner gave several
reminders regarding her pity condition
to the respondents but nothing was done
and
ultimately
vide
letter
dated
782 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
22.2.2005 of respondent the petitioner
was told that since no vacancy is
available at that time so her case can not
be considered at present but as and
when the vacancy will arise she will be
considered for such appointment. The
aforesaid letter of respondent dated
22.2.2005 is on record as Annexure-5 to
the writ petition. It is further stated that
when nothing was done in the matter the
petitioner
has
again
sent
reminder/representations
dated
8.4.2005,
17.1.2006,
8.4.2006
and
22.7.2006 collectively contained in
Annexure- 7 to the writ petition. As
nothing
has
been
done
by
the
respondent, she moved this petition
before this court seeking aforesaid
relief.

5. A counter affidavit has been
filed on behalf of respondents stating
that under relevant scheme applicable to
the employees of the Corporation only
5% of the vacancies meant for direct
recruitment could be available for
compassionate appointment. In the year
2000-2001
no
compassionate
appointment was made for want of
vacancy. In the counter affidavit the
scheme of compassionate appointment
of Government of India contained in
office memo dated 5.5.2003 has been
filed as Annexure-CA-1, which provides
that no request for compassionate
appointment can be considered if it has
not already acted upon within three
years.
Since
the
vacancy
for
compassionate appointment did not
occur for three years, therefore, claim of
petitioner was not considered. The
petitioner was informed by letter dated
27th June, 2006 that she fulfilled
qualification and eligibility for Class IV
post but due to non availability of
vacancy
her
case
could
not
be
considered
for
compassionate
appointment. The aforesaid letter dated
27.6.2006 has been filed as AnnexureCA-2 to the aforesaid counter affidavit.

6. After going through the
aforesaid version of the parties Hon'ble
Mr. Justice Sudhir Agarwal has been
pleased to dismiss the writ petition on
23.11.2010
with
the
following
observations:-

"
5. It
is
well
settled
that
compassionate
appointment can
be
allowed strictly under the scheme
applicable to the Corporation. It is not
the case of the petitioner in the
rejoinder affidavit or otherwise that the
scheme, said to be applicable to the
respondents-Corporation, is not in the
manner, as stated by the respondents,
but otherwise.

6. Since the appointment of the
petitioner could not be made within the
prescribed period of three years for
want of vacancy, and further that the
scheme provided that no such request
can be considered, I do not find that the
act of the respondents in any manner is
contrary
to
the
scheme
for
compassionate appointment.

7. I, therefore, find no error
apparent on the face of the record or in
the act of the respondents warranting
any interference.

8. Dismissed.

9. Interim order, if any, stands
vacated."
2 All] Smt. Asha Rani V. State of U.P. and others
783
7. Feeling aggrieved against the
aforesaid order dated 23.11.2010 the
petitioner
preferred
special
appeal
before this Court which was numbered
as Special Appeal No.13 of 2011 Smt.
Asha Rani Vs. State of U.P. and others.
A Division Bench of this Court has been
pleased to set aside the judgment of
Hon'ble Single Judge and remitted the
matter back to the learned Single Judge
with direction to consider the scope and
ambit of elaborate judgement in the
matter
of
Hari
Ram
Vs.
Food
Corporation
of
India
and
others
reported in 2009 (2) LBESR 482 (Alld).
It would be useful to quote the relevant
observations made by division Bench of
this Court as under:-

"We
have
gone
through
an
elaborate judgment dated 08.04.09,
Hari Ram Vs. Food Corporation of
India & others passed in Civil Misc.
Writ Petition No.2412 of 2008 from
which it appears that the learned single
Judge considered the scheme as harsh
in nature and ultimately quashed the
instructions contained in the Office
Memorandum dated 5th May, 2003 of
the Department of Personnel and
Training, Ministry of Personnel, Public
Grievances and Pension, Government of
India fixing time limit of three years for
offering
compassionate
appointment
declaring it to be irrational, arbitrary,
unreasonable and violative of Art. 14
and 16 of the Constitution of India.

We have been told that no appeal
has been preferred against such order
atleast not to the knowledge of the
learned counsel appearing for the
appellant. If it is so, it would be proper
for the learned single Judge to consider
this aspect upon being called. Since the
consideration of such part was not
available before the learned single
Judge, we are of the view that the order
impugned should be set aside, and is
accordingly set aside, remitting the
matter back to the learned single Judge
to consider scope and ambit of the
elaborate judgment in the matter of
Hari Ram (supra).

Accordingly the appeal is disposed
of at the stage of admission, however,
without imposing any cost."

8. Thereafter the matter came to be
listed before this Court on 20.4.2012.
Since counter and rejoinder affidavits
have been exchanged between the
parties and the case was ripe for final
disposal, therefore, learned counsel
appearing for the parties agreed for final
disposal of the case and advanced their
arguments for final disposal of the case.

9.

I
have
considered
the
submissions of learned counsel for the
parties, perused the record and have
gone through the decision rendered by
Division Bench of this Court in special
appeal filed by the petitioner and
reported decision rendered by Hon'ble
Single Judge in Hari Ram's case (supra).

10. In Hari Ram Vs. Food
Corporation of India through its
Executive Director, Noida & others,
2009(2) LBESR 482 (All), Hon'ble
Single Judge of this court while
considering
the
rationality
of
instructions contained in Office Memo
dated
5.5.2003
of
Department
of
Personnel and Training, Ministry of
Personnel,
Public
Grievances
and
Pension, Government of India fixing
time limit of three years for offering
784 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
compassionate appointment has held
that fixing time limit for three years for
offering
such
compassionate
appointment is irrational, arbitrary,
unreasonable and violative of Articles
14 and 16 of the Constitution of India.
The pertinent observations made by this
court in aforesaid decision contained in
para
13,14,15,16,18
and
19
are
extracted as under:-

"13. The prescription of 5% quota
of
the
direct
recruitment
for
compassionate appointment falls within
the domain of the policy adopted by the
Government of India. The court will not
ordinarily interfere with such policy
unless it is wholly arbitrary and
unreasonable. The policy is reasonable
and adopted to balance with the rights
of unemployed men and women and is
thus not violative of Articles 14 and 16
of the Constitution of India.

14. The maximum limit of three
years, however, does not appear to be
reasonable to the object of providing
the compassionate appointment. The
Department of Personnel and Training,
Ministry
of
Personnel,
Public
Grievances and Pension, Government of
India by its Office Memo randum dated
5th May, 2003, decided that with one
year limit prescribed for grant of
compassionate
appointment
often
results in depriving genuine cases
seeking compassionate appointment, on
account of regular vacancies not being
available within the prescribed period
of one year and within the prescribed
limit of ceiling of 5% DR quota, and it
was,
therefore,
decided
that
if
compassionate appointment to genuine
and deserving case as per guidelines
contained in the Officer Memorandum
dated December 3rd, 1999 is not
possible in the first year, due to nonavailability of regular vacancy, the
Prescribed Committee may review such
case, to evaluate the financial condition
of the family to arrive at a decision as
to whether a particular case warrants
extension
of
one
more
year
for
consideration
for
compassionate
appointment by the committee, subject
to availability of clear vacancy within
the prescribed 5% quota. The Office
Memorandum
provides
that
if
on
scrutiny by the Committee a case is
considered to be deserving, the name of
such a person can be continued for
consideration for one more year and
that maximum time in para 3, for
persons' name can be kept under
consideration
for
offering
compassionate appointment will be
three years, subject to the condition that
Prescribed Committee has reviewed and
certified the penurious condition of the
applicant at the end of the first and
second year. After three years, if
compassionate
appointment
is
not
possible to be offered to the applicant,
his case will be finally closed and will
not be considered again.

15. It does not appear to be
reasonable that if a case of a person is
certified by the Prescribed Committee,
after a review, in which the Committee
finds
that
the
condition
of
the
applicant's family continues to be
penurious, the case should be closed on
the expiry of three years. It may not only
be arbitrary but will also cause injustice
to the person, who has been certified to
deserve compassionate appointment.

16. It is always possible as in the
present case that the family of the
2 All] Smt. Asha Rani V. State of U.P. and others
785
dependent is found to be living in a
financial distress and that family needs
compassionate appointment, the person
may not fall within 5% DR quota for
three continuous years. It will be
extremely unjust and harsh to deny
compassionate appointment in such
case. The restriction of number of
vacancies to be made available in 5%
DR and then confining it to three years,
makes the entire exercise of offering
compassionate appointment, a matter of
chance and thereby in ignorance of the
object for which such appointment is
offered and makes the whole policy
irrational.

18. In this case the placement in
the waiting list for 5% DR quota has not
been shown to be based on the
penurious condition of the family of the
deceased employee. His first and second
review by the Prescribed Committee
confirms that the application still needs
and falls within the category of the
family, which are in financial distress.
Inspite
of
such
verification,
the
prescription of maximum period of three
years for compassionate appointment
may result into grant of appointment
after long delay, but has no object to be
achieved except by permitting the family
to continue to live under poverty,
whereas new cases may be considered
on their own merits in the first, second
and third years.

19. In my opinion the prescription
of maximum period of three years after
verification
by
the
Prescribed
Committee of the penurious condition of
the dependents of the deceased is highly
irrational
and
unreasonable.
The
compassionate appointment should not
be kept in the realm of a chance and to
become a gaming exercise subject to the
availability
of
vacancies
and
the
maximum number of years it should be
based on
human and
sympathetic
consideration to the family of the
deceased employee. Each case should
be reviewed on its own merit and
consideration should not be allowed to
any number of years. If the family
continues to be under financial distress,
there should be no limit of maximum
number
of
years
for
which
an
application may be considered."

11. At this juncture it is to be
noted that in Director of Education
(Secondary) Vs. Pushpendra Kumar,
1998 (5) SCC 192 = AIR 1998 SC
2230, once the Apex Court has held that
the compassionate appointment should
be offered only against the vacancies of
Class III and Class IV posts liable to be
filled up through direct recruitment then
it should not have been confined again
within the ceiling limit of 5% of such
vacancies for the reason that allocation
of merely 5% vacancies of direct
recruitment quota for compassionate
appointment does not provide sufficient
opportunity
to
the
dependent
of
deceased government servant, instead
thereof it provides a mere chance of
employment. Therefore, such policy
fixing
5%
vacancies
of
direct
recruitment
for
the
purpose
of
compassionate appointment can also be
held
to
be
arbitrary,
irrational,
unreasonable and contrary to the main
object of compassionate appointment
under Dying-in-Harness Rules but since
Hon'ble Single Judge of this Court has
declared the aforesaid aspect of Office
Memo dated 5.5.2003 as reasonable in
Hari Ram's case (supra), therefore, I am
not inclined to refer the issue for
786 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
consideration to the larger Bench and I
would like to accept the verdict of this
Court in Hari Ram's case as referring
the matter to the larger Bench in instant
case would further prolong the litigation
and since the death of government
servant has taken place in the year 2002
and a period of about more than nine
years have passed, therefore, any further
delay in the matter would cause
prejudice to the case of petitioner.

12. In this connection, it would be
useful to refer a Division Bench
decision of this Court rendered in Vivek
Yadav Vs. State of U.P. and others,
2010 (7) ADJ Page 1 wherein while
considering the content and import of
proviso
to
Rule-5(1)
of
U.P.
Recruitment
of
Dependent
of
Government Servant Dying-in-Harness
Rules, 1974 in respect of extension of
time
for
making
application
for
compassionate appointment beyond the
period of 5 years fixed for making such
application
after
the
death
of
Government servant in para 7 and 8 of
the decision it has been held that power
to relax itself contemplates that in a
particular case, the matter has to be
dealt with in a just and equitable
manner. In other words, the test to be
applied is does the family of the
deceased continue to suffer financial
distress and hardship occasioned by
death of breadwinner so as to relax the
period within which the application
could be made. For ready reference the
pertinent observations made by this
Court in aforesaid para are quoted as
under:-

"7. ........ The proviso, in our
opinion, which confers power to relax
the delay in making an application
within five years, also must be read to
include consideration of an application
even after expiry of 5 years if the
applicant was a minor at the time of
death of the deceased employee and
makes an application within reasonable
time of attaining majority.

8. The power to relax itself
contemplates that in a particular case,
the matter has to be dealt with in a just
and equitable manner. In other words,
the test to be applied is does the family
of the deceased continue to suffer
financial
distress
and
hardship
occasioned
by
the
death
of
the
breadwinner so as to relax the period
within which the application could be
made. These are matters of fact, which
the competent authority would have to
consider. In the instant case, what we
find is that the application was rejected
merely because it was beyond the time
prescribed."

13. In view of law laid down by
this court in Hari Ram's case and
Vivek Yadav's cases the concerned
authorities are required to consider each
case on its merit and consideration
should not be allowed to any number of
years. If the family of the deceased
employee
continues
to
be
under
financial distress and hardship, there
should be no limit of maximum number
of years under which an application may
be considered. In instant case, since the
authority concerned has rejected the
application
of
petitioner
for
compassionate appointment on account
of lapse of a period of more than three
years from the date of death of Shyam
Veer Singh without further considering
the case of applicant on merit as to
whether
the
family
of
deceased
2 All] Radhey Shyam Maurya V. State of U.P. and others
787
employee is continuously facing
financial
distress
and
hardship
occasioned
by
death
of
deceased
employee of corporation and whether
the family can not be relieved from such
financial distress and hardship without
offering compassionate appointment to
the applicant, therefore, the impugned
order dated 27th January 2006 passed
by
Assistant
General
Manager,
contained
in
Annexure
S.A.-1
of
Amendment Application and also as
Annexure
C.A.-2
to
the
counter
affidavit
cannot
be
sustained.
Accordingly
the
same
is
hereby
quashed.

14. The Authority concerned is
directed
to
consider
the
case
of
petitioner
on
merit
and
while
considering so the competent authority
shall examine as to whether the family
of deceased employee continues to be
under financial distress and hardship
and the family of deceased employee
cannot be relieved from such financial
hardship
and
distress
unless
the
compassionate appointment is offered to
the petitioner. It is needless to say that
while
taking
such
decision
the
competent authority shall pass reasoned
and speaking order. Such exercise shall
be completed within a period of two
months from the date of production of
certified copy of the order passed by
this court before competent authority.

15.

With
the
aforesaid
observations
and
directions,
writ
petition succeeds and is allowed to the
extent indicated herein before.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.05.2012

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.

Civil Misc. Writ Petition no. 57380 of 2009

Radhey Shyam Maurya
 ...Petitioner
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri R.S. Ram
Sri M.P. Yadav
Sri Harendra Yadav

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226cancellation of Fire Arm license-on
ground pendency of certain criminal
cases against petitioner-no material
produced to establish misuse of Fire
Arm-mere pendency of criminal case
can not be ground for revocation of
license.

Held: Para 18

It is well settled that mere fact that
some reports had been lodged against
the petitioner would not establish the
"necessary connection with security of
the public peace or public safety".
Therefore, in view of the settled law
unless there is some other report or
material, only initiation of the criminal
cases against the petitioner cannot be
a ground to sustain the order of
revocation of arms licence.
Case law discussed:
2011 (74) ACC140; 1978 AWC 122; 2011
(74) ACC 304; 2010 (3) JIC 630; 2004 (2)
JIC 239 (All); 2002 (1) JIC 501 (All); 2011
(1) JIC 417 (All); 2011 (73) ACC 846; 2005
(3) 774 (All)