# Smt. Baby v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 67
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-15
- **Case number:** Writ-A No. 17008 of 2001
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-baby-v-state-of-u-p-ors-47773
- **Pages:** 7

## Headnote

Law
-
Compassionate
Appointment - Dying-in-Harness Rules,
1974 - Rule 2(C)(iii); Employees Service
Regulations, 1980 - Rule 104 - U.P.
Cooperative Societies Employees Service
Regulations, 1975 - Regulation 104(5) -
The Rule of Compassionate Appointment
for dependents of deceased Government
Employee
Dying-in-Harness
has
been
carved out as an exception of the general
rule of equal opportunity in employment
u/Article 16 of the Constitution. The
reason for carving out for such exception
is to save a dependent of a deceased
employee from destitution and penurious
conditions. (Para 11)

The petitioner's case has not been rejected on
the ground of failure of the petitioner to prove
her dependence on her dead mother. The
Respondents have not said that the petitioner is
not a deserted woman left to fend for herself
and her two children and that she was not living
with her mother at the time of her death. The
rejection of the petitioner's case has never been
on the merits of the case of the petitioner for
seeking compassionate appointment because of
the indigent circumstances, she was facing. The
Respondents have always relied upon the
68 INDIAN LAW REPORTS ALLAHABAD SERIES
technical grounds to defeat the claim of the
petitioner. Every time such order has been
passed rejecting the claim of the petitioner on
technical ground, this Court has intervened in
extraordinary jurisdiction u/Article 226 of the
Constitution and rejected the grounds taken by
the respondents. The petitioner has been forced
to face repeated litigation for no fault on her
part. The petitioner was not responsible for the
financial condition of PCF, therefore, in case, the
PCF has suffered financial loses since the time
of the death of the petitioner's late mother, it
cannot be said that the petitioner should be
deprived of her legitimate right to be adjusted
as a Class-IV employee in the establishment of
the Respondents. (Para 11)

The order dated 12.03.2021 is set aside. This
writ petition is disposed of with a direction to
the respondents to consider the claim of the
petitioner for appointment on compassionate
grounds and pass appropriate orders thereon.
(Para 12, 13)

Writ petition disposed off. (E-4)

Precedent followed:

## Text

10 All. Smt. Baby Vs. State of U.P. & Ors.
67
wedded wife of deceased Manoj Kumar as
also the children begotten from the
marriage of Pushpa Devi and Manoj
Kumar. The marriage of the elder daughter
namely Jigyasa has also been solemnized
by the petitioner. There is is no allegation
that the amount received towards the
terminal dues of late Manoj Kumar and the
family
pension
has
been
usurped/misappropriated by the petitioner.
In such circumstances, the Court is of the
opinion that the amount already disbursed
to the petitioner shall not be recovered from
her. However, in future the family pension
shall be drawn up in the name of Smt.
Pushpa Devi, the legally wedded wife of
late Manoj Kumar and the dependent
children as per law instead of the petitioner.

31. In view of the above, the writ
petition is partly allowed. The impugned
order dated 25.03.2022 passed by the District
Basic Education Officer, Kaushambi and the
consequential order dated 29.03.2022 passed
by the Finance and Accounts Officer, Basic
Education, Kaushambi, so far as they direct
for stoppage of family pension and recovery
against the petitioner are set aside. The order
dated 25.03.2022 passed by the District Basic
Education Officer, Kaushambi, is modified to
the extent that the family pension shall now
be drawn in the name of Smt. Pushpa Devi,
the legally wedded wife of late Manoj Kumar
and the dependent children and the same shall
be released month to month as and when the
same falls due. Necessary orders to the above
effect shall be passed by the District Basic
Education Officer, Kaushambi, within three
weeks of receipt of the certified copy of this
order.

32. It is clarified that the amount
already disbursed to the petitioner shall not
be recovered.
----------
(2022) 10 ILRA 67
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ-A No. 17008 of 2001

Smt. Baby ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Lavkush Kumar Shukla, Sri Lokesh
Kumar Dwivedi

Counsel for the Respondents:
C.S.C., Sri Arun K. Singh Deshwal

A.
Service
Law
-
Compassionate
Appointment - Dying-in-Harness Rules,
1974 - Rule 2(C)(iii); Employees Service
Regulations, 1980 - Rule 104 - U.P.
Cooperative Societies Employees Service
Regulations, 1975 - Regulation 104(5) -
The Rule of Compassionate Appointment
for dependents of deceased Government
Employee
Dying-in-Harness
has
been
carved out as an exception of the general
rule of equal opportunity in employment
u/Article 16 of the Constitution. The
reason for carving out for such exception
is to save a dependent of a deceased
employee from destitution and penurious
conditions. (Para 11)

The petitioner's case has not been rejected on
the ground of failure of the petitioner to prove
her dependence on her dead mother. The
Respondents have not said that the petitioner is
not a deserted woman left to fend for herself
and her two children and that she was not living
with her mother at the time of her death. The
rejection of the petitioner's case has never been
on the merits of the case of the petitioner for
seeking compassionate appointment because of
the indigent circumstances, she was facing. The
Respondents have always relied upon the
68 INDIAN LAW REPORTS ALLAHABAD SERIES
technical grounds to defeat the claim of the
petitioner. Every time such order has been
passed rejecting the claim of the petitioner on
technical ground, this Court has intervened in
extraordinary jurisdiction u/Article 226 of the
Constitution and rejected the grounds taken by
the respondents. The petitioner has been forced
to face repeated litigation for no fault on her
part. The petitioner was not responsible for the
financial condition of PCF, therefore, in case, the
PCF has suffered financial loses since the time
of the death of the petitioner's late mother, it
cannot be said that the petitioner should be
deprived of her legitimate right to be adjusted
as a Class-IV employee in the establishment of
the Respondents. (Para 11)

The order dated 12.03.2021 is set aside. This
writ petition is disposed of with a direction to
the respondents to consider the claim of the
petitioner for appointment on compassionate
grounds and pass appropriate orders thereon.
(Para 12, 13)

Writ petition disposed off. (E-4)

Precedent followed:

1. Smt. Vimla Srivastava Vs St. of U.P., Writ
Petition No. 60881 of 2015, decided on
04.12.2015 (Para 3(1))

2. Shiv Kumar Dubey Vs St. of U.P. & ors.,
(2014) 2 ADJ 312 (Para 3(4))

Present
petition
assails
order
dated
12.03.2021 received alongwith covering
letter dated 17.08.2021, passed by Uttar
Pradesh Cooperative Federation Limited
(PCF), Lucknow.

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

(Oral)

1. Heard learned counsel for the
petitioner and Sri Arun K. Singh Deshwal,
learned counsel for the respondents no. 2
and 3.

2. This petition has been filed by the
petitioner challenging the Order dated
12.03.2021 received alongwith covering
letter dated 17.08.2021 passed by the
Respondent No.2 and praying for a
Mandamus to be issued to the respondent
No. 2 and 3 to appoint the petitioner on
compassionate ground within a stipulated
time period.

3. It is the case of the petitioner that
the
mother
of
the
petitioner
Smt.
Shakuntala Devi was working as a Sweeper
with the Respondent No.2 & 3 and she died
in harness on 14.01.2006 leaving behind
her husband, who expired on 28.05.2015
and her three daughters, Smt. Baby i.e. the
petitioner, Smt Neelam W/o Moolchand
and Smt. Sunita W/o Pradeep, who also
died on 22.01.2010. After the death of Smt.
Shakuntala her brother's son Sri Anil
Kumar produced a bogus Adoption Deed
dated
18.11.1996
and
tried
to
get
compassionate appointment on the basis of
such
Adoption
Deed.
The
petitioner
challenged the said Adoption Deed by
filing Original Suit No. 352 of 2012, which
was allowed on 20.03.2014, by declaring
the Adoption Deed as void. The order
passed by the trial court was not challenged
in any Appeal and it attained finality. After
judgement and decree dated 20.03.2014,
the petitioner moved an application on
05.06.2014 before the Senior Regional
Manager on PCF, Agra for appointment on
compassionate ground, such application
was forwarded to the Respondent No.4.
Although in the application made by the
petitioner, she had clearly stated that she
was living with her mother as her husband
had deserted her and she had one son and
one daughter to take care of, her
application was rejected on 20.10.2015 on
the ground that she is a married daughter
and married daughter does not come within
10 All. Smt. Baby Vs. State of U.P. & Ors.
69
the list of dependents/family members as
per
the
1975
Regulations
governing
Cooperative Societies.

The petitioner challenged the
order dated 20.10.2015 in Writ Petition,
namely, Writ-A No. 1446 of 2016, 'Smt.
Baby vs. State of U.P. and Others, which
was disposed of by this Court on
20.01.2016 by making observations that in
view of the ratio laid down by the Division
Bench of this Court in Writ Petition No.
60881 of 2015, ''Smt. Vimla Srivastava vs.
State of U.P. decided on 04.12.2015, the
respondents
should
reconsider
the
application of the petitioner. The order
dated 20.10.2015 was set aside.

In Writ-C No. 60881 of 2016,
Smt. Vimla Srivastava (Supra) a Division
Bench of this Court had held that the claim
of the writ petitioner for compassionate
appointment cannot be rejected on the
ground that the definition of family in Rule
2(C) of the Dying-in-Harness Rules, 1974
does not contain the expression ''married
daughter'. The Court held the exclution of
married daughters from the Rules as illegal
and unconstitutional being violation of
Article 14 and 15 of the Constitution of
India. The Court struck down the word
''unmarried' in Rule 2(C) (iii) of the Dyingin-Harness Rules, 1974.

The case of the petitioner was
considered by the Respondents again, but it
was rejected on 20.05.2016, on the ground
that the application that made by the
petitioner for compassionate appointment
on 07.06.2014 was beyond the time limit
fixed in the Government Order No.
06/12/73-Ka/93 dated 16.04.1993 which
provided
for
an
appointment
on
compassionate grounds to be given within
five years of the death of the deceased
employee.

The petitioner challenged the
Order dated 20.05.2016 in Writ-A No.
31054 of 2016 which Writ Petition was
allowed and the order dated 20.05.2016
was
quashed
by
referring
to
the
observations made by the Full Bench of
this Court in Shiv Kumar Dubey Vs. State
of U.P. and Others (2014) 2 ADJ 312 ,
where the Full Bench had held that Rule 5
mandates that ordinarily, an application for
compassionate appointment must be made
within five years of the death of the
deceased employee. The power conferred
by the first proviso is a discretion to relax
the period in case of undue hardship and
for dealing with the case in a just and
equitable manner. Although there is no
general right which can be claimed by the
dependent of the deceased employee for
compassionate appointment, in case a
member of the family/dependent is a minor
at the time of the death of the Government
Servant or there are any other genuine
reasons
which
caused
the
delay
in
approaching the employers, the reasons and
justifications of such delay shall be
considered by the employer and the power
to relax can be exercised in favour of a
dependent of a deceased employee, if
sufficient reasons to the satisfaction of the
employer can be shown by the dependent
claiming compassionate appointment. The
Court while allowing Writ-A No. 31054 of
2016 and set aside the order dated
20.05.2016, observed that in case the
family of the deceased is living in a
financial
destitution
and
penurious
conditions,
the
application
can
be
considered subject to evidence led by the
applicant that the family is still living in
indigent circumstances.

4. After the order passed by this Court
on 11.08.2016, the petitioner made a
representation detailing all circumstances
for delay caused in approaching the
employer i.e. the Respondents No. 2 and 3
70 INDIAN LAW REPORTS ALLAHABAD SERIES
in
application
for
compassionate
appointment. Such application of the
petitioner was rejected by order dated
23.11.2016 by the Managing Director,
Uttar
Pradesh
Cooperative
Federation
Limited (PCF) on the ground that under the
Employees Service Regulations of 1980,
Rule 104 provided the definition of family
which still excluded ''married daughter',
and the petitioner challenged such order in
another Writ Petition, namely, Writ-C No.
1475 of 2017, where a Division Bench of
this Court allowed the Writ Petition on
30.10.2019 setting aside the order dated
23.11.2016 and also declaring Rule 104 (5)
of the Employees Service Rules, 1980 as
ultra-virus to the extent it excludes
''married daughter' from the definition of
''family'. The respondents were directed to
reconsider the claim of the petitioner for
compassionate appointment.

When the order passed by this
Court dated 30.10.2019 was not complied
with the petitioner was forced to file a
Contempt Application (Civil) No. 1476 of
2021, the Court disposed of the Contempt
Application with liberty to the petitioner to
move a fresh application before the
respondent, who shall decide the same
within two months from the date of
production of copy of the order before the
authority concerned.

5.

The
petitioner
moved
a
representation in compliance of the Order
passed by this Court in Contempt Petition
before the Respondents, which has been
rejected by the impugned Order dated
12.03.2021 with the observations that the
respondent is a Apex Level Cooperative
Society/Federation which has to bear the cost
of salary and allowances of its employees
from its own resources and under the U.P.
Cooperative
Societies
Act,
1965,
no
establishment cost/subsidy or grant is made
available by the Government of U.P. or any
other Authority for the Federation to give
salary to its employees. It is suffering
financially since long and has to take loans
from banks to meet its expenses. In the
Balance Sheet of the year 2019-2020, a total
of
Rs.
489
Crores
were
shown
as
accumulated
losses.
Under
the
U.P.
Cooperative Societies Employees Service
Regulations,
1975,
the
Federation
is
incapable of bearing the financial costs of
even its existing employees and that the
Federation has not engaged any dependent of
deceased employee on compassionate ground
since 2018. As and when, the financial status
of the Federation improves the case of the
petitioner
for
grant
of
compassionate
appointment shall be considered.

6. The petitioner has challenged the
order passed by the Respondents rejecting her
application now on the ground of lack of
financial resources by saying that at least till
2018,
the
Federation
was
making
appointment of dependent of deceased
employee on compassionate ground. The
petitioner's claims was filed initially in June,
2014. It could not have been rejected as her
right crystallized in 2014 itself. Had the
respondents considered the application for
compassionate appointment in the right
perspective when it was initially filed in
2014,
she
would have
been
granted
compassionate appointment, as it is the own
case of the respondents that they continued to
give
compassionate
appointments
to
dependents of deceased employees till 2018.
The petitioner has been forced to approach
this Court thrice in Writ Petitions earlier and
once in Contempt jurisdiction only because
of intransigence of the Respondents.

7. Sri Arun Kumar Singh Deshwal, on
the basis of his counter affidavit, has
submitted that the application of the
10 All. Smt. Baby Vs. State of U.P. & Ors.
71
petitioner for compassionate appointment
was made on 05.06.2014 much after five
years limitation period prescribed for the
same. The petitioner was a married
daughter and did not come within the
definition of dependent of the deceased
employee as per the Regulation 104 (5) of
the U.P. Cooperative Societies Employees
Service Regulations,1975, therefore, her
claim was rejected earlier.

8. It has further been submitted that
no objection certificate given by Smt.
Neelam, the elder sister of the petitioner is
not on a notarized stamp paper, and
therefore, it cannot be looked into. The
gratuity of Late Shakuntala Devi has been
sanctioned by an order dated 02.12.2006
which was communicated by letter dated
07.02.2007
of
the
General
Manager
(Administration), PCF to the legal heirs of
Late Shakuntala Devi through the District
Manager, PCF, Agra with the requirement
that such legal heir should submit the Death
Certificate, Succession Certificate, No
Objection Certificate of other legal heirs,
and complete all formalities, but the
petitioner
has
not
completed
any
formalities, and therefore, gratuity of Late
Shakuntala Devi has also not been released.

9. It has further been submitted that
the
claim
of
the
petitioner
for
compassionate appointment was rightly
rejected as Regulation 104 (5) of U. P.
Cooperative Societies Employees Service
Regulations, 1975 did not include ''married
daughter' in the definition of family
initially. Also the financial condition of
PCF is very poor. It has suffered loss of
more than Rs.488 Crores in the financial
year 2020-2021, therefore, no appointment
on compassionate ground can be made and
in fact has not been made since 2018. The
financial condition of PCF is so poor that
even arrangement for salaries of its officers
and employees has become very difficult,
and therefore, the benefit of the Seventh
Pay Commission has not been given to the
employees of the PCF. As soon as the
PCF's financial conditions improves the
petitioner's case shall be considered for
appointment on compassionate ground.

10. This Court having heard the
learned counsel for the parties finds that the
respondents
have
not
disputed
the
candidature of the petitioner on the ground
that there is a dispute amongst the legal
heirs/dependents of Late Shakuntala Devi.
The case of the petitioner was initially
rejected on the ground that she was a
married daughter. When this Court allowed
her
writ
petition
and
directed
the
respondents to consider her case in the light
of judgement rendered in Smt. Vimla
Srivastava
(Supra),
the
respondents
rejected the claim of the petitioner on the
ground of being delayed. The petitioner
approached this Court and this court
clarified that there was no delay in
approaching the respondents and even if
there was delay it had been sufficiently
explained. Again, when her case was
considered, it was rejected on the ground
that
under
the
Employees
Service
Regulation of 1975, married daughter was
excluded from the definition of family
under Rule 104 (5). The petitioner was
forced to approach this Court again by
filing a writ petition, which writ petition
was again allowed by a Division Bench
quashing Rule 104 (5), insofar as, it
excluded married daughter within the
definition
of
family/dependents.
The
petitioner's case was not being considered,
therefore, she filed a Contempt Petition and
the Contempt Petition was disposed of with
the direction to the respondents to consider
the case of the petitioner afresh in the light
72 INDIAN LAW REPORTS ALLAHABAD SERIES
of the judgement of this Court in earlier
Writ Petitions filed by the petitioner. Now,
a new ground has been raised by the
Respondents saying that they do not have
the financial capacity to engage a Class-IV
employee or to give salary to a Sweeper.
The petitioner is only asking to be
adjusted/appointed
on
compassionate
ground as a Sweeper, it is not the case of
Respondents that they have not made any
fresh appointments, or that they have not
been making any fresh appointment after
the PCF started running into loss.

11. This Court finds from a
perusal of the judgements passed earlier
in the case of the petitioner by this
Court that the petitioner has been
unduly harassed by the respondents for
one reason or the other. Now a fresh
ground is being raised that the PCF
does not have financial capacity to
engage the petitioner as Sweeper on
compassionate ground. No doubt, the
PCF may be suffering from financial
loss and no doubt appointment on
compassionate
ground
cannot
be
claimed as a reservation or as an
indefeasible right by a dependent of a
deceased employee. However, the law
as settled by the Hon'ble Supreme Court
and by a Full Bench of this Court
clearly provides that the Rule of
Compassionate
Appointment
for
dependents of deceased Government
Employee Dyingin-Harness has been
carved out as an exception of the
general rule of equal opportunity in
employment under Article 16 of the
Constitution. The reason for carving out
for such exception is to save a
dependent of a deceased employee from
destitution and penurious conditions.
The petitioner's case has not been
rejected on the ground of failure of the
petitioner to prove her dependence on
her dead mother. The Respondents have
not said that the petitioner is not a
deserted woman left to fend for herself
and her two children and that she was
not living with her mother at the time of
her
death.
The
rejection
of
the
petitioner's case has never been on the
merits of the case of the petitioner for
seeking
compassionate
appointment
because of the indigent circumstances,
she was facing. The Respondents have
always
relied
upon
the
technical
grounds to defeat the claim of the
petitioner. Every time such order has
been passed rejecting the claim of the
petitioner on technical ground, this
Court has intervened in extraordinary
jurisdiction under Article 226 of the
Constitution and rejected the grounds
taken by the respondents. The petitioner
has been forced to face repeated
litigation for no fault on her part. The
petitioner was not responsible for the
financial condition of PCF, therefore, in
case, the PCF has suffered financial
loses since the time of the death of the
petitioner's late mother, it cannot be
said that the petitioner should be
deprived of her legitimate right to be
adjusted as a Class-IV employee in the
establishment of the Respondents.

11. The order dated 12.03.2021 is
set aside,

12. This writ petition is disposed
of with a direction to the respondents to
consider the claim of the petitioner for
appointment on compassionate grounds
and pass appropriate orders thereon,
keeping in mind the observations made
herein above within a period of six
weeks from the date of copy of this
order is produced before them.
10 All. Rishi Pal Singh Vs. State of U.P. & Ors.
73
----------
(2022) 10 ILRA 73
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ-A No. 35066 of 2008
With
Writ -A No. 35068 of 2018

Rishi Pal Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Ashok Khare
(Senor Adv.)

Counsel for the Respondents:
C.S.C.

A. Service Law - Dismissal - Punishment -
U.P. Police Officers of Subordinate Rank
(Punishment and Appeal) Rules, 1991 -
Rule 14(1) - No violation of rules of
natural justice - All 3 delinquent constables
have been sent the copy of the charge-sheet to
which
they
(2
petitioners
herein)
have
submitted their reply/explanation which has
been considered in inquiry. Even after notifying
the date of examination of witnesses the
delinquent constables did not appear which
implies that they intentionally did not participate
in the proceedings. (Para 13)

B.
Scope
of
Judicial
Review
-
The
Constitutional Court while exercising its
jurisdiction of judicial review U/Article
226 or Article 136 of the Constitution
would not interfere with the findings of
fact arrived at in the departmental enquiry
proceedings except in a case of malafides
or perversity, i.e., where there is no evidence
to support a finding or where a finding is such
that no man acting reasonably and with
objectivity could have arrived at that findings
and so long as there is some evidence to
support the conclusion arrived at by the
departmental authority, the same has to be
sustained. (Para 12)

It is true that strict Rules of evidence are not
applicable to departmental enquiry proceedings.
However, the only requirement of law is that the
allegation against the delinquent must be
established by such evidence acting upon which
a reasonable person acting reasonably and with
objectivity may arrive at a finding upholding the
gravity of the charge against the delinquent
employee. It is true that mere conjecture or
surmises cannot sustain the finding of guilt even
in the departmental enquiry proceedings. (Para
12)

It is settled that the power of judicial
review, of the Constitutional Courts, is an
evaluation of the decision-making process
and not the merits of the decision itself. It
is to ensure fairness in treatment and not to
ensure
fairness
of
conclusion.
The
Court/Tribunal may interfere in the proceedings
held against the delinquent if it is, in any
manner, inconsistent with the Rules of natural
justice or in violation of the statutory Rules
prescribing the mode of enquiry or where the
conclusion or finding reached by the disciplinary
authority if based on no evidence. If the
conclusion or finding be such as no reasonable
person would have ever reached or where the
conclusions upon consideration of the evidence
reached by the disciplinary authority is perverse
or suffers from patent error on the face of
record or based on no evidence at all, a writ of
certiorari could be issued. To sum up, the
scope
of
judicial
review
cannot
be
extended
to
the
examination
of
correctness
or
reasonableness
of
a
decision of authority as a matter of fact.
(Para 12)

C.
Proportionality
of
punishment
-
Delinquent constables had the duty to safely get
the criminals back to Moradabad. But they not
only went to criminals' relatives' house but had
food at a hotel and consumed alcohol. They
were so drunk that the criminals ran away after
opening their handcuffs and constables kept
sleeping. This amounts to grave misconduct and