# Smt. Kavita Tiwari v. State of U.P. Ors

- **Citation:** (2024) 4 ILRA 165
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-04
- **Case number:** Writ A No. 556 of 2022
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kavita-tiwari-v-state-of-u-p-ors-51755
- **Pages:** 6

## Headnote

Law
-
Compassionate
Appointment - Eligibility of Married Daughter
- Petitioner, a married daughter of a deceased
government servant, challenged the rejection of
her claim for compassionate appointment under
the
U.P.
Recruitment
of
Dependants
of
Government Servants Dying in Harness Rules,
1974 - Held, the rejection based on her marital
status was unsustainable, as the Division Bench
in Smt. Vimla Srivastava Vs St. of U.P. held
that a married daughter's claim cannot be
rejected solely on the ground of marital status
under the Rules, 1974 - The respondents'
reliance on St. of U.P. Vs Madhavi Mishra ,
which pertained to Regulations, 1995, was
inapplicable. (Paras 6, 10, 19, 20)

B.
Service
Law
-
Compassionate
Appointment - Employment of Other Family
Members - The respondents rejected the
petitioner's
claim
citing
her
brothers'
employment as Lekpals - Held, under Rule 5(1)
of the Rules, 1974, as amended in 1999,
compassionate appointment is barred only if the
surviving spouse is in government service, not if
other family members like siblings are employed
- Kumari Nisha Vs St. of U.P. clarified that a
sibling's
employment
does
not
preclude
compassionate appointment, as their earnings
are for their own family - This ground was
legally untenable. (Paras 8, 11, 21, 22)
C.
Service
Law
-
Compassionate
Appointment - Pension and Financial Benefits
- The respondents argued that the petitioner's
mother receiving pension and retiral benefits
disqualified the petitioner's claim - Held, the
Rules, 1974 do not stipulate financial benefits as
a bar to compassionate appointment - Pramod
Kumar Rajak Vs Registrar General High Court
Allahabad confirmed that receipt of pensionary
benefits does not disentitle a family member
from seeking compassionate appointment - This
ground was rejected. (Paras 8, 12, 23)

D.
Service
Law
-
Compassionate
Appointment - Dependency Requirement -
The respondents contended in their counter
affidavit that the petitioner was not dependent
on her deceased father - Held, Rule 2(c) and
Rule 5 of the Rules, 1974 define "family" to
include a married daughter and do not mandate
dependency on the deceased employee as a
condition for compassionate appointment - The
respondents could not impose an extra-statutory
requirement of dependency to deny the
petitioner's claim. (Paras 9, 13, 24)

E.
Judicial
Review
-
Relief
in
Compassionate Appointment Cases -
The
respondents'
rejection
order
dated
25.10.2021
was
based
on
grounds
inconsistent with the Rules, 1974 and prior
judicial precedents - Held, the order was
legally unsustainable due to misapplication of
law and failure to adhere to the Division
Bench's ruling in Smt. Vimla Srivastava -
The writ petition was allowed, the impugned
order was quashed, and the respondents
were directed to reconsider the petitioner's
claim within two months in accordance with
the law. (Paras 14, 17, 25)

Writ Petition Allowed.
Impugned Order Dated 25.10.2021 Quashed -
Respondents Directed to Reconsider Petitioner's
Claim for Compassionate Appointment.

List of Cases cited:

## Text

4 All. Smt. Kavita Tiwari Vs. State of U.P. Ors.
165
(2024) 4 ILRA 165
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.04.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ A No. 556 of 2022

Smt. Kavita Tiwari ...Petitioner
Versus
State of U.P. Ors. ...Respondents

Counsel for the Petitioner:
Tushar Verma, Prashant Kumar Singh

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Compassionate
Appointment - Eligibility of Married Daughter
- Petitioner, a married daughter of a deceased
government servant, challenged the rejection of
her claim for compassionate appointment under
the
U.P.
Recruitment
of
Dependants
of
Government Servants Dying in Harness Rules,
1974 - Held, the rejection based on her marital
status was unsustainable, as the Division Bench
in Smt. Vimla Srivastava Vs St. of U.P. held
that a married daughter's claim cannot be
rejected solely on the ground of marital status
under the Rules, 1974 - The respondents'
reliance on St. of U.P. Vs Madhavi Mishra ,
which pertained to Regulations, 1995, was
inapplicable. (Paras 6, 10, 19, 20)

B.
Service
Law
-
Compassionate
Appointment - Employment of Other Family
Members - The respondents rejected the
petitioner's
claim
citing
her
brothers'
employment as Lekpals - Held, under Rule 5(1)
of the Rules, 1974, as amended in 1999,
compassionate appointment is barred only if the
surviving spouse is in government service, not if
other family members like siblings are employed
- Kumari Nisha Vs St. of U.P. clarified that a
sibling's
employment
does
not
preclude
compassionate appointment, as their earnings
are for their own family - This ground was
legally untenable. (Paras 8, 11, 21, 22)
C.
Service
Law
-
Compassionate
Appointment - Pension and Financial Benefits
- The respondents argued that the petitioner's
mother receiving pension and retiral benefits
disqualified the petitioner's claim - Held, the
Rules, 1974 do not stipulate financial benefits as
a bar to compassionate appointment - Pramod
Kumar Rajak Vs Registrar General High Court
Allahabad confirmed that receipt of pensionary
benefits does not disentitle a family member
from seeking compassionate appointment - This
ground was rejected. (Paras 8, 12, 23)

D.
Service
Law
-
Compassionate
Appointment - Dependency Requirement -
The respondents contended in their counter
affidavit that the petitioner was not dependent
on her deceased father - Held, Rule 2(c) and
Rule 5 of the Rules, 1974 define "family" to
include a married daughter and do not mandate
dependency on the deceased employee as a
condition for compassionate appointment - The
respondents could not impose an extra-statutory
requirement of dependency to deny the
petitioner's claim. (Paras 9, 13, 24)

E.
Judicial
Review
-
Relief
in
Compassionate Appointment Cases -
The
respondents'
rejection
order
dated
25.10.2021
was
based
on
grounds
inconsistent with the Rules, 1974 and prior
judicial precedents - Held, the order was
legally unsustainable due to misapplication of
law and failure to adhere to the Division
Bench's ruling in Smt. Vimla Srivastava -
The writ petition was allowed, the impugned
order was quashed, and the respondents
were directed to reconsider the petitioner's
claim within two months in accordance with
the law. (Paras 14, 17, 25)

Writ Petition Allowed.
Impugned Order Dated 25.10.2021 Quashed -
Respondents Directed to Reconsider Petitioner's
Claim for Compassionate Appointment.

List of Cases cited:

1. Smt. Vimla Srivastava Vs St. of U.P., Writ A
No. 60881 of 2015, decided on 04.12.2015

2. St. of U.P. Vs Madhavi Mishra, Special Appeal
No. 223 of 2021
166 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Kumari Nisha Vs St. of U.P., Writ A No. 16068
of 2023, decided on 08.02.2024

4. Pramod Kumar Rajak Vs Registrar General
High Court Allahabad, 2011 (4) U.P.L.B.E.C.
2692

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner as well as learned Standing
counsel for the respondents.

2. The instant petition has been filed
challenging the order dated 25.10.2021
passed by the respondent No.3, a copy of
which is annexure 1 to the petition,
whereby the claim of the petitioner for
compassionate
appointment
has
been
rejected. Further prayer is for a mandamus
commanding the respondents to grant
compassionate
appointment
to
the
petitioner under the U.P. Recruitment of
Dependants of Government Servants Dying
in Harness Rules, 1974.

3. Bereft of unnecessary details, the
case set forth by the learned counsel for the
petitioner is that the petitioner's father
namely Shri Om Prakash Tiwari, while
working on the post of Driver in the office
of Executive Engineer, Sinchai Khand,
Lucknow, died in harness on 18.05.2019
leaving behind his widow namely Smt.
Uma Tiwari, a married son namely Rahul
Tiwari and two married daughters namely
the petitioner and Smt. Pratibha Tiwari.

4. The petitioner staked her claim for
compassionate
appointment
under
the
provisions
of
U.P.
Recruitment
of
Dependants of Government Servants Dying
in
Harness
Rules,
1974
(hereinafter
referred to as Rules, 1974). The claim of
the petitioner was rejected vide orders
dated 15.02.2020 and 11.03.2020 on the
ground that she being a married daughter is
not entitled for being appointed on
compassionate
grounds
under
the
provisions of the Rules, 1974.

5. A challenge was raised to both the
orders
by
filing
Writ
Petition
No.12052(S/S) of 2020 in Re: Smt. Kavita
Tiwari Vs. State of U.P. and Others and
writ Court, vide order dated 30.07.2020, a
copy of which is annexure 7 to the petition,
set aside both the orders and required the
competent authority to reconsider the claim
of the petitioner afresh. The said judgment
was passed considering the judgment of
this Court passed in Writ A No.60881 of
2015 decided on 04.12.2015 and the
Special Leave to Appeal against which had
also been dismissed.

6. Incidentally, Writ A No.60881 of
2015 in Re: Smt. Vimla Srivastava Vs.
State of U.P. and Another, a copy of the
judgment which has been annexed as
annexure No.8 to the petition, pertains to a
judgment of this Court whereby this Court
had also held a married daughter to be
entitled for compassionate appointment and
the State was required to consider the case
of a married daughter and to not reject the
same solely on the ground of her marital
status.

7. In pursuance thereof, the petitioner
again staked her claim for being appointed
on compassionate grounds, which has been
rejected
vide
order
impugned
dated
25.10.2021, a copy of which is annexure 1
to the petition.

8. Learned counsel for the petitioner
states that a perusal of the order impugned
would indicate that the respondents have
rejected the claim of the petitioner for
compassionate appointment primarily on
4 All. Smt. Kavita Tiwari Vs. State of U.P. Ors.
167
three grounds namely (a) that as per the
judgment of Division Bench of this Court
passed in Special Appeal No.223 of 2021
in Re: State of U.P. and Another Vs.
Madhavi Mishra and 2 Others, a married
daughter is not entitled for compassionate
appointment and would be said to be
dependent on her husband (b) two
brothers of the petitioner are working on
the post of Lekpal and (c) the mother of
the petitioner is receiving pension every
month and has also received the GPF
amount.

9. Learned counsel for the petitioner
further states that in the counter affidavit
filed by the respondents, another ground
has been taken in paragraph 7 of the
counter affidavit that the petitioner was
not dependent on her father.

10. The contention of learned
counsel for the petitioner is that so far as
the judgment is concerned, over which
reliance
has
been
placed
by
the
respondents while rejecting the claim of
the petitioner i.e. in the case of Madhavi
Mishra (supra), the same does not
pertain to the Rules, 1974 and as such,
has no applicability to the facts of the
present case, more particularly, when the
petitioner has staked her claim for
compassionate appointment under the
provisions of the Rules, 1974 which in
fact have been considered by the Division
Bench of this Court in the case of Smt.
Vimla Srivastava (supra).

11. So far as the allegation of two
brothers of the petitioner being in
employment are concerned, reliance has
been placed on the provisions of Rules,
1974 to contend that there is no such bar
in
the
Rules
which
prohibits
the
petitioner
from
being
appointed
on
compassionate ground in case any of her
brothers are in employment. He further
states that this aspect of the matter has been
considered by this Court in Writ A
No.16068 of 2023 in Re: Kumari Nisha
Vs. State of U.P. and 3 Others decided on
08.02.2024.

12. So far as the ground of the
petitioner's mother having received pension
and other dues is concerned, it is contended
that mere grant of pensionary benefits to a
person would not disentitle either that
person or the family member of the
deceased from staking their claim for
compassionate appointment. Reliance has
also been placed over the judgment of this
Court in the case of Pramod Kumar
Rajak Vs. Registrar General High Court
Allahabad, 2011 (4) U.P.L.B.E.C. 2692.

13. So far as the ground taken in the
counter affidavit of the petitioner not being
dependent on the deceased employee is
concerned, again reliance has been placed
on the provisions of the Rules, 1974 to
contend that the Rules, 1974 do not
contemplate the family member to be
dependent upon the deceased employee
rather the definition of family, as indicated
in Rule 2 (c), would now include a married
daughter and the only condition for
compassionate appointment, as stipulated
in Rule 5, does not contemplate or stipulate
a
person
seeking
compassionate
appointment to be dependent upon the
deceased employee, rather he should be a
family member.

14. Thus, it is contended that all the
grounds taken by the respondents, while
rejecting the claim of the petitioner for
compassionate appointment, are legally
unsustainable in the eyes of law and
accordingly, the order impugned merits to
168 INDIAN LAW REPORTS ALLAHABAD SERIES
be set aside with a direction to the
respondents to consider the claim of the
petitioner
on
compassionate
grounds
afresh.

15. On the other hand, learned
Standing counsel, on the basis of averments
contained in the counter affidavit, has
supported the order impugned and states
that on account of the grounds, as
contained in the order impugned, the
petitioner is not entitled for compassionate
appointment.

16. Heard the learned counsels for the
parties and perused the record.

17. From a perusal of record, it
emerges that admittedly, the petitioner is a
married
daughter
of
the
deceased
employee, who died in harness. She staked
her claim for compassionate appointment
which was initially rejected by the
respondents, vide orders dated 15.02.2020
and 11.03.2020, on the ground that she
being a married daughter is not entitled for
compassionate
appointment.
The
writ
Court, vide judgment and order dated
30.07.2020, quashed both the orders
considering the judgment of this Court
passed in the case Smt. Vimla Srivastava
(supra) and required the respondents to
reconsider the claim of the petitioner for
compassionate appointment.

18. In pursuance thereof, the
respondents have reconsidered the claim of
the
petitioner
for
compassionate
appointment but have rejected her claim on
the grounds as already indicated above.

19. So far as the ground taken by the
respondents of the Division Bench of this
Court in the case of Madhavi Mishra
(supra) having held that a married
daughter as not being dependent and hence
not entitled for compassionate appointment,
is concerned, a perusal of the judgment in
the case of Madhavi Mishra (supra)
would indicate that the Division Bench of
this Court was considering the provisions
of Regulations, 1995 and not the provisions
of the Rules, 1974 rather the Division
Bench has gone to the extent of indicating
that the order of Single Judge, whose
judgment had been challenged in the
Special Appeal, had wrongly invoked the
provisions of the Rules, 1974.

20. Thus, the said judgment would
have no applicability in the instant case,
more particularly, when the claim of the
petitioner for compassionate appointment is
governed by the Rules, 1974 which aspect
of
the
matter
has
been
considered
threadbare by the Division Bench of this
Court in the case of
Smt. Vimla
Srivastava (supra), wherein the Division
Bench has observed that the case of
compassionate appointment of a married
daughter would not be rejected solely on
the ground of her marital status.

21. So far as the ground of two
brothers of the petitioner working as
Lekpal is concerned, the said ground may
also not detain the Court as this aspect of
the matter has been considered threadbare
by this Court in the case of Kumari Nisha
(supra)
wherein
this
Court,
after
considering the provisions of the Rules,
1974, has held as under:

17. This Court finds that initially
Rule 5(1) of the Rules of 1974 provided for
compassionate appointment to one family
member
dependent
on
the
deceased
government servant provided he is not in
government job meaning thereby that there
was
only
one
condition
where
the
4 All. Smt. Kavita Tiwari Vs. State of U.P. Ors.
169
compassionate appointment could have
been
refused
i.e.
person
seeking
compassionate appointment was already in
government job. Later on, Rule 5(1) of the
Rules of 1974 has been amended in the
year 1999 and amended Rule 5(1) provides
that if the surviving spouse of the deceased
government servant is in government job
then the other family members dependent
on the deceased government servant shall
not
be
entitled
for
compassionate
appointment.

15. This Court further finds that
the legislature while amending Rule 5(1) of
the Rules of 1974 was conscious of the fact
that if one son of the deceased government
servant is in government job, his earnings
may not be available for survival of the
remaining family members of the deceased
government servant for the reason that the
earnings of the son are meant for survival
of his own family (his wife and children)
and therefore only one prohibition has
been incorporated that if the surviving
spouse of the deceased government servant
is in government job, the other dependent
family members are not entitled for
compassionate appointment."

22. Thus, from a perusal of the
judgment of this Court in the case of
Kumari Nisha (supra), it clearly emerges
that the mere fact that any brother of a
person seeking compassionate appointment
is in a government service the same would
not be a bar to the family member of
staking
a
claim
for
compassionate
appointment under the Rules, 1974. Thus,
the said ground is also rejected.

23. So far as the ground that the
mother of the petitioner is receiving
pension every month and had also received
the other retiral dues, financial benefits
have not been made a bar under the Rules,
1974 or cannot be considered to be a bar
when no such condition has been stipulated
in the Rules, 1974 as to entail a person
seeking compassionate appointment as
being
not
eligible
for
seeking
compassionate appointment. This aspect of
the matter has been considered threadbare
by the Court in the case of Pramod
Kumar Rajak Vs. Registrar General
High
Court
Allahabad,
2011
(4)
U.P.L.B.E.C. 2692 while considering the
provisions of the Rules, 1974. Thus, the
said ground is also rejected.

24. So far as the ground of the
petitioner not being dependent on the
deceased government servant, as has been
taken in the counter affidavit, is concerned,
even the said ground may not detain the
Court inasmuch as Rules, 1974 only
defines the word Family as per Rule 2 (c)
and Rule 5, which specifically governs the
compassionate appointment, also does not
indicate
that
a
person
seeking
compassionate appointment should be a
dependent of the deceased government
servant. It cannot be a case that when a
word is not included under the Rules, 1974,
the respondents may add any word in order
to deprive the consideration of the claim of
the
petitioner
for
compassionate
appointment.

25. Keeping in view of the aforesaid
discussion, the writ petition is allowed. The
order impugned dated 25.10.2021, a copy of
which is annexure 1 to the petition, is set
aside. The respondents are required to
reconsider the claim of the petitioner for
compassionate appointment keeping in view
the discussion made above. Let such a
decision be taken in accordance with law
within a period of two months from the date
of receipt of a certified copy of this order.
----------
170 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 4 ILRA 170
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DONADI RAMESH, J.

Writ A No. 602 of 2024

Dr. Brajendra Singh Chauhan ...Petitioners
Versus
Central Administrative Tribunal & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Pramod Kumar Pandey

Counsel for the Respondents:

A. Contempt Jurisdiction - Maintainability
of
Writ
Petition
Against
Tribunal's
Contempt Orders - Petitioners challenged
the Central Administrative Tribunal's order dated
20.10.2023, which closed contempt proceedings
for alleged non-compliance with its earlier order
dated 10.05.2022 - Held, under Section 17 of
the Administrative Tribunals Act, 1985, read with
Section 19 of the Contempt of Courts Act, 1971,
orders passed by the Tribunal in contempt
proceedings are appealable only to the Supreme
Court within 60 days, and no writ petition is
maintainable before the High Court under
Articles 226/227 of the Constitution, as per T.
Sudhakar Prasad Vs Government of A.P. - The
writ petition was dismissed as non-maintainable.
(Paras 5, 7, 10, 11, 16, 17, 20, 21)

B. Administrative Tribunals - Contempt
Powers and Jurisdiction - The Central
Administrative Tribunal, under Section 17 of the
Administrative Tribunals Act, 1985, has the
same jurisdiction to punish for contempt as a
High Court under the Contempt of Courts Act,
1971, with references to "High Court" construed
as "Tribunal" - Held, this power is derived from
Article 323-A(2)(b) of the Constitution, and the
Tribunal's contempt orders are distinct from its
regular orders under Section 14, as the former
are appealable only to the Supreme Court, not
subject to High Court's judicial review under
Articles 226/227, per L. Chandra Kumar Vs
U.O.I.. (Paras 7, 8, 10, 13, 15, 16, 17)

C. Judicial Review - Scope Over Tribunal's
Contempt Orders - Petitioners sought to
invoke High Court's jurisdiction under Article 226
to challenge the Tribunal's closure of contempt
proceedings - Held, the High Court's judicial
review under Articles 226/227 is limited to
matters
under
Section
14
of
the
Administrative Tribunals Act, 1985, and does
not extend to contempt orders under Section
17, which are exclusively appealable to the
Supreme Court - The Tribunal's contempt
jurisdiction
is
supplemental,
not
substitutional, to the High Court's powers
under Article 215, as clarified in T. Sudhakar
Prasad and L. Chandra Kumar . (Paras 11,
13, 15, 16, 20)

D. Compliance with Tribunal's Orders -
Contempt Proceedings - The Tribunal's
order
dated
10.05.2022
directed
regularization of petitioners as Assistant
Medical Officers from their initial appointment
date as Short Term Medical Officers, with
notional service benefits but no salary arrears
-
Held,
the
Tribunal
found
substantial
compliance by the respondents' order dated
19.04.2023, which regularized petitioners and
granted notional service benefits, and closed
contempt proceedings - The petitioners' claim
for additional benefits like notional seniority
and promotions was not expressly directed by
the
Tribunal's
order,
and
no
willful
disobedience was established. (Paras 2, 3, 13,
14)

E. Statutory Interpretation - Contempt
Appeals and Tribunal's Role - The
Administrative
Tribunals
Act,
1985,
and
Contempt of Courts Act, 1971, create a
distinct framework for contempt appeals -
Held, Section 19 of the Contempt of Courts
Act,
read
with
Section
17
of
the
Administrative
Tribunals
Act,
explicitly
provides for appeals from Tribunal's contempt
orders to the Supreme Court, excluding intraTribunal appeals or High Court review - The
Tribunal, while exercising contempt powers,
remains subject to High Court's supervisory
jurisdiction under Articles 226/227 for non-