# Smt. Pancho Devi @ Madhvi v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 815
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** Writ-A No. 661 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-pancho-devi-madhvi-v-state-of-u-p-ors-49420
- **Pages:** 10

## Headnote

A. Service Law - UP State District Court
Service Rules, 2013 - Rule 3(3) & 4 - UP
Subordinate
Civil
Courts
Inferior
Establishment
Rules,
1955
-
Compassionate
appointment
-
Qualification - After employee's death on
22.03.2011,
widow's
claim
for
compassionate appointment was rejected
vide
order
dated
10.05.2011
against
which writ was allowed remanding the
matter for fresh decision - Again widow's
application was rejected on 03.09.2013 on
the ground of not possessing minimum
qualification of Class VI as required under
Rules,
2013
coming
in
force
on
04.07.2013
-
Validity
challenged
-
Applicability of the Rule of 2013 - Held,
right to consideration of an appointee for
compassionate
appointment
is
to
be
governed by the rules in force on the date
of death of the employee in harness - If
the petitioner's application had been
examined in the correct perspective by the
learned District Judge, when it was first
rejected vide order dated 10.05.2011, an
order that did not find favour with this
Court, the result would have certainly
been different. (Para 8, 12, 18 and 20)
B. Interpretation of statute - Applicability
of Rule - Determinate and fixed criteria or
indeterminate and variable criteria -
Dependability
-
Bheemesh
alias
Bheemappa's case relied upon - Held,
interpretation as to the applicability of a
modified Scheme should depend only
upon a determinate and fixed criteria such
as
the
date
of
death
and
not
an
indeterminate and variable factor. (Para
17 and 18)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

11 All. Smt. Pancho Devi @ Madhvi Vs. State of U.P. & Ors.
815
Therefore, the petition lacks merit and is
hereby dismissed.
----------
(2023) 11 ILRA 815
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 661 of 2014

Smt. Pancho Devi @ Madhvi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Kumar, Sri Manoj Yadav, Sri
Rajendra Kumar Srivastava, Sri Rajesh
Kumar, Sri Sanjeev Kumar Pandey, Sri
Shashi Dhar Pandey

Counsel for the Respondents:
C.S.C., SriManish Goyal, Sri S.P. Singh, Ms.
Bushra Mariyam

A. Service Law - UP State District Court
Service Rules, 2013 - Rule 3(3) & 4 - UP
Subordinate
Civil
Courts
Inferior
Establishment
Rules,
1955
-
Compassionate
appointment
-
Qualification - After employee's death on
22.03.2011,
widow's
claim
for
compassionate appointment was rejected
vide
order
dated
10.05.2011
against
which writ was allowed remanding the
matter for fresh decision - Again widow's
application was rejected on 03.09.2013 on
the ground of not possessing minimum
qualification of Class VI as required under
Rules,
2013
coming
in
force
on
04.07.2013
-
Validity
challenged
-
Applicability of the Rule of 2013 - Held,
right to consideration of an appointee for
compassionate
appointment
is
to
be
governed by the rules in force on the date
of death of the employee in harness - If
the petitioner's application had been
examined in the correct perspective by the
learned District Judge, when it was first
rejected vide order dated 10.05.2011, an
order that did not find favour with this
Court, the result would have certainly
been different. (Para 8, 12, 18 and 20)
B. Interpretation of statute - Applicability
of Rule - Determinate and fixed criteria or
indeterminate and variable criteria -
Dependability
-
Bheemesh
alias
Bheemappa's case relied upon - Held,
interpretation as to the applicability of a
modified Scheme should depend only
upon a determinate and fixed criteria such
as
the
date
of
death
and
not
an
indeterminate and variable factor. (Para
17 and 18)
Writ petition allowed. (E-1)
List of Cases cited:
1. MGB Gramin Bank Vs Chakrawarti Singh;
(2014) 13 SCC 583
2. Secretary to Government Department of
Education (Primary) & ors. Vs Bheemesh @
Bheemappa; AIR 2022 SC 402

(Delivered by Hon'ble J.J. Munir, J.)

This writ petition is directed against
the order dated 03.09.2013, passed by the
District Judge of Firozabad, bearing
Administrative Order No. 90 of 2013,
rejecting
the
petitioner's
claim
for
compassionate appointment.

2. The petitioner's husband, the late
Mahadev Prasad, was a permanent ClassIV employee in the establishment of the
District Court, Firozabad. He met with an
accident on 22.03.2011 and died the same
day, still in harness. After her husband's
demise, the petitioner moved an application
before
the
learned
District
Judge,
Firozabad,
seeking
compassionate
appointment under the Uttar Pradesh
Recruitment of Dependants of Government
816 INDIAN LAW REPORTS ALLAHABAD SERIES
Servants Dying in Harness Rules, 1974 (for
short, 'the Rules of 1974'). The petitioner's
application
for
appointment
on
compassionate ground lay unattended for a
considerable period of time, leaving her
with no option but to move this Court by
means of Writ-A No. 27883 of 2011,
seeking
a
direction
to
decide
her
application. When the said writ petition
came on 13.05.2011, learned Counsel for
the second respondent informed the Court
that the petitioner's application had been
rejected by the learned District Judge on
10.05.2011. Taking cognizance of the
aforesaid statement made by learned
Counsel for the respondents, Writ-A No.
27883 of 2011 was dismissed, with a
direction to the learned District District
Judge, Firozabad to supply a copy of the
order dated 10.05.2011 to the petitioner.
The petitioner received a copy of the order
dated 10.05.2011 issued by the Senior
Administrative Officer, District Court,
Firozabad,
rejecting
her
claim
for
compassionate appointment.

3. It is the petitioner's case that a
committee of two Judges of the Judgeship
at Firozabad held the petitioner not entitled
to be considered for appointment under the
Rules of 1974. The aforesaid opinion was
expressed by the committee of two Judges
in their report dated 13.04.2011 and the
said report was accepted by the learned
District Judge, Firozabad vide order dated
10.05.2011. A true copy of the report dated
13.04.2011 and a copy of the order of the
learned District Judge, Firozabad dated
10.05.2011, approving the said report
communicated
by
the
Senior
Administrative Officer vide memo dated
17.05.2011, is on record.

4.

The
petitioner's
claim
for
compassionate appointment was rejected
by the Committee on ground that the
petitioner had passed her Class IVth
examination, whereas according the U.P.
Subordinate
Civil
Courts
Inferior
Establishment Rules, 1955 (for short, 'the
Rules of 1955'), the minimum qualification
for appointment as a Class-IV employee is
Junior High-school. It is also averred in
paragraph no. 11 of the writ petition that
the late Mahadev Prasad's mother (Smt.
Shakuntala Devi) along with her other son,
Tinku Sharma also moved an application
before the learned District Judge, Firozabad
with the averment that Mahadev Prasad
was unmarried and died in harness on
22.03.2011. On the foot of this allegation,
appointment under the Rules of 1974 was
sought in favour of Tinku Sharma,
Mahadev Prasad's brother. The application
moved by Smt. Shakuntala Devi and Tinku
Sharma also received consideration by the
Committee of two Judges in the report
dated 13.04.2011. It was opined regarding
Tinku Sharma's claim that he is not a
family member, as defined under Section
2(c) of the Rules of 1974. It was held that
for the said reason, Tinku Sharma was not
entitled to appointment on compassionate
grounds.

5. Smt. Shakuntala Devi along with
Tinku Sharma filed Writ-A No. 52717 of
2011,
challenging
the
order
dated
10.05.2011 passed by the learned District
Judge, Firozabad, with a further prayer that
Tinku Sharma's case for compassionate
appointment be considered in accordance
with the Rules of 1974. The petitioner, in
assertion of her rights, instituted Writ-A
No. 35871 of 2011, also challenging the
order
dated
10.05.2011/17.05.2011,
impugning it regarding the part that has
negatived her claim. Both the writ petitions
aforesaid were connected, heard together
and decided by a common judgment and
11 All. Smt. Pancho Devi @ Madhvi Vs. State of U.P. & Ors.
817
order dated 03.05.2013. This Court vide
judgment and order dated 03.05.2013,
allowed Writ Petition No. 35871 of 2011,
to wit, the petition filed by the petitioner
and dismissed Writ Petition No. 52717 of
2011 (the one filed by Smt. Shakuntala
Devi and Tinku Sharma). This Court
directed
the
learned
District
Judge,
Firozabad to consider the petitioner's
claim, within a period of two months of the
date of production of a certified copy of
this Court's judgment and order.

6. In compliance with this Court's
order dated 03.05.2013, the learned District
Judge, Firozabad referred the petitioner's
case
to
the
Grievance
Redressal
Committee, headed by the senior-most
Additional District Judge along with two
other members; both the Additional District
Judges posted at Firozabad. Pending
consideration of the petitioner's application
before the Committee, the U.P. State
District Court Service Rules, 2013 (for
short, the Rules of 2013) came into force
with
effect
from
04.07.2013.
The
educational qualifications for appointment
of
Class-IV
employees,
prior
to
enforcement of the Rules of 2013, were
governed by the Rules of 1955. While
under Rule 11 of the Rules of 1955,
educational
qualifications
for
direct
recruitment to the establishment mentioned
a preference for the candidates who had
passed
their
Junior
High-school
or
equivalent examination and could read
and write English characters and figures,
there was no imperative of possessing
these qualifications in order to maintain a
valid candidature. By contrast, under
Schedule-B read with Sub Rule-3(3) and
4 of the Rules of 2013, the minimum
educational qualification prescribed for
the post of lowest grade is a Class VIth
certificate.

7. The Committee to whom the
petitioner's case was referred were of
opinion that under Schedule-B to the Rules
of 2013 read together with Rule 3(3) and 4,
the petitioner, who had passed her Class 4,
is not eligible for any post of Group-D
because
the
prescribed
educational
qualification was Junior High-school and
for the post of a Sweeper-cum-Farrash, it
was Class 6. The Committee further opined
that according to the law laid down by the
Supreme Court in MGB Gramin Bank vs.
Chakrawarti Singh1 the Rules of 2013
notified by then shall be applicable. The
committee were, therefore, of opinion that
the petitioner was not eligible for being
appointed to any post in the Civil Court on
compassionate
grounds.
They
recommended
that
the
petitioner's
application be rejected. The learned District
Judge went through the Rules of 2013 and
found that the post at serial no.17 in
Schedule-B was that of a Sweeper-cumFarrash, a post that can be filled up by
direct
recruitment.
The
minimum
qualification shown in the relevant column
for the said post was Class VIth. Since the
petitioner had passed her Class IVth
examination, the Rules of 2013 notified on
04.07.2013 rendered her ineligible for
appointment to any post in the Civil
Court's establishment. The learned District
Judge took note of the fact that this Court,
in its judgment and order dated 03.05.2013,
while directing a consideration of the
petitioner's case, held that the educational
qualifications have not been prescribed for
the inferior staff in the establishment of the
Civil Court. There is only a preference
indicated
for
those
holding
certain
qualifications.

8. This Court referred to the Rules of
1955 to direct the learned District Judge
that he would examine as to whether in the
818 INDIAN LAW REPORTS ALLAHABAD SERIES
inferior
establishments,
there
is
any
vacancy,
where
no
educational
qualifications are required, seeing the
nature of the work, which is to be done by
the appointee. It was also remarked that the
learned District Judge, while passing the
order impugned in Writ Petition No. 35871
of 2011, earlier preferred by the petitioner,
had misread and misinterpreted the Rules
of 1955. About this part of the remarks of
ours in the judgment and order dated
03.05.2013, the learned District Judge said
that though he had been directed to
reconsider
the
petitioner's
case
for
compassionate appointment by this Court,
observing that there are certain posts in
Group-D in the Civil Court establishment,
where no educational qualifications are
required, the Rules of 2013 had not been
notified by that time. Now, the Rules of
1955 have been repealed and substituted by
the Rules of 2013, and, according to the
latter Rules, the minimum qualification for
a post in the Civil Court establishment is
a Class VIth certificate. Therefore, the
petitioner
is
not
eligible
for
appointment under the Rules of 2013.
The learned District Judge also took
into consideration the law laid down by
the Supreme Court in the case of MGB
Gramin Bank (supra) to hold that the
petitioner
cannot
say
that
while
considering her application, her case
should be considered as per Rules
prevailing on the date of her husband's
death. It is not that the cause of action
arises on the death of an employee in
harness. Accordingly, the petitioner's
claim came to be rejected by the
impugned
order
dated
03.09.2013,
passed by the learned District Judge,
Firozabad.

9. Aggrieved, this writ petition has
been instituted.

10. A counter affidavit has been filed
on behalf of respondent No. 2. The stand
taken in paragraph No. 12 of the counter
affidavit is that going by the principle laid
down by the Supreme Court in MGB
Gramin Bank, rules in force on the date of
consideration of the applicant's case, for
compassionate appointment, would apply,
and the applicant has no right to say that
the Rules prevailing on the date of death of
an employee in harness, that is to say, the
date when the cause of action had arisen,
ought to be the governing principle. It is
pleaded that the Rules of 2013 would
govern the rights of the petitioner under
which
the
minimum
prescribed
qualification for the post of a Sweepercum-Farrash is a Class VIth certificate. The
petitioner
has
passed
her
Class
4
examination, and, is, therefore, ineligible.

11. Heard Mr. Saneev Kumar Pandey,
learned Counsel for the petitioner and Ms.
Bushra Maryam, learned Special Counsel
appearing for the High Court.

12. The crux of the dispute in this
matter is : Whether the rules relating to
qualifications on the date the petitioner's
husband died would apply to consider her
case or those in force on the date that the
petitioner's
application
came
to
be
considered by the Redressal Grievance
Committee? It is no doubt true that there
has been some division of opinion in the
authorities of the Supreme Court on the
point, if the claim for compassionate
appointment is to be considered in
accordance with the rules or the scheme in
force on the date of death of an employee
in harness, or a subsequent date, say when
the application comes up for consideration
before
the
competent
Authority.
In
Secretary to Government Department of
Education (Primary) and others v.
11 All. Smt. Pancho Devi @ Madhvi Vs. State of U.P. & Ors.
819
Bheemesh alias Bheemappa2 the issue
was whether in case of a compassionate
appointment, the Rules governing the right
to consideration in force on the date that
the death of a Government servant in
harness occurs apply or those on a
subsequent date, say, when the application
for compassionate appointment comes up
for consideration before the competent
authority. The issue postulates a situation,
where the rules for consideration have
undergone a change between the date of
death in harness and the date on which the
dependant's application for compassionate
appointment is considered.

13. The facts in Bheemesh alias
Bheemappa (supra) can best be recounted
in the words of their Lordships :

"8. Admittedly, the appointment
on compassionate grounds in the State of
Karnataka is governed by a set of Rules
known
as
Karnataka
Civil
Services
(Appointment on Compassionate grounds)
Rules, 1996, issued in exercise of the
powers conferred by Section 3(1) read with
Section 8 of the Karnataka State Civil
Services Act, 1978. The Rules as they
stood, on the date on which the sister of the
respondent died in harness, did not include
an unmarried brother, within the definition
of the expression "dependant of a deceased
Government servant" under Rule 2(1)(a) of
the said Rules vis-a-vis a deceased female
unmarried Government servant. But it was
only by way of an amendment proposed
under a draft Notification dated 20.06.2012
which was given effect under the final
Notification bearing No. DPAR 55 SCA
2012, Bangalore dated 11.07.2012 that an
unmarried brother of a deceased female
unmarried
Government
servant
was
included within the definition. There is no
dispute about the fact that the sister of the
respondent died as an unmarried female
Government servant, but on 8.12.2010,
before the amendment was made to the
Rules."

14. The issue, therefore, was if the
amended
Rules
in
Bheemesh
alias
Bheemappa that came into force after
death of the Government servant there,
would have retrospective application and
govern the case of the dependant unmarried
brother of the deceased unmarried female
Government servant, or the amendment
would have prospective application from
the date it came into force. It was examined
and answered by their Lordships thus:

"9. To hold that the amendment
will have retrospective application, the
High Court as well as the Tribunal relied
upon a Judgment of the Division Bench of
the High Court of Karnataka in State of
Karnataka v. Akkamahadevamma and
others, decided on 18.11.2010 in Writ
Petition Nos.20914 of 2010 etc.: (Reported
in 2011 (2) AIR Kar R 118). But it should
be pointed out at the outset that the
Judgment
of
the
High
Court
in
Akkamahadevamma
arose
out
of
an
amendment to the Karnataka Civil Services
(General Recruitment) (57th Amendment)
Rules, 2000. By the Amendment made on
30.03.2010 to the said Rules, grandson,
unmarried granddaughter, daughter in law,
widowed
daughter
and
widowed
granddaughter were included within the
definition of the expression "members of
the family" under Explanation-2 of Rule 9.
But the amendment so made on 30.03.2010
expanding the definition of the expression
"members of the family" was triggered by
an Order of the Tribunal which held the
unamended rule to be unconstitutional. It is
in that context that the amendment made on
30.03.2010
to
the
Rules
issued
on
820 INDIAN LAW REPORTS ALLAHABAD SERIES
23.11.2000 was held by the High Court to
be retrospective in nature. It must also be
remembered that the expanded definition
was with respect to project displaced
persons. The right conferred upon a project
displaced person stands on a different
footing from the entitlement of a person to
seek
appointment
on
compassionate
grounds. In any case an amendment
brought forth, on the basis of a Judgment of
a Court or Tribunal, holding the exclusion
of certain categories of persons to be
violative of Articles 14 and 16 of the
Constitution, may receive an interpretation
such as the one proposed by the High Court
in Akkamahadevamma. But the same may
not be applicable to amendments of the
nature that we are concerned with in this
case.

10. x x x

11. Be that as it may, Sh. Jayanth
Muthraj, learned senior counsel appearing
for the respondent pleaded that there are
two lines of Judgments of this Court, one
taking the view that the Rules/Scheme in
force on the date of death of the
Government servant would govern the field
and the other holding that the Rules/scheme
in force on the date of consideration of the
claim would govern the field. Unable to
reconcile this conflict, a two Member
Bench of this Court, by its Order dated
08.02.2019 in State Bank of India v. Sheo
Shankar Tewari1, has referred the matter
for consideration by a larger Bench. Sh.
Jayanth Muthraj, learned senior counsel
therefore made a request that the present
appeal may either be placed along with the
reference or await a decision on the above
reference.

12. But we do not consider it
necessary to do so. It is no doubt true that
there are, as contended by the learned
senior Counsel for the respondent, two
lines of decisions rendered by Benches of
equal strength. But the apparent conflict
between those two lines of decisions, was
on account of the difference between an
amendment by which an existing benefit
was
withdrawn
or
diluted
and
an
amendment by which the existing benefit
was enhanced. The interpretation adopted
by this Court varied depending upon the
nature of the amendment..."

15. The tabulated reference to the six
cases in paragraph No. 12, where their
Lordships have analysed the seemingly
divergent opinions, expressed by their
Lordships on the issue in those cases, as to
the date with reference to which rules in
force
for
compassionate
appointment
would apply for consideration of the
dependant's case, is omitted for the sake of
brevity.

16. There are two other cases
considered in Bheemesh alias Bheemappa
that are not alluded to in the table set forth
in paragraph no. 12 , where it is observed:

"13. Apart from the aforesaid
decisions, our attention was also drawn to
the decision of the three member Bench in
State of Madhya Pradesh v. Amit Shrivas2.
But that case arose out of a claim made by
the dependant of a deceased Government
servant, who was originally appointed on a
work charged establishment and who later
claimed to have become a permanent
employee. The Court went into the
distinction between an employee with a
permanent status and an employee with a
regular status. Despite the claim of the
dependant that his father had become a
permanent employee, this Court held in that
case that as per the policy prevailing on the
11 All. Smt. Pancho Devi @ Madhvi Vs. State of U.P. & Ors.
821
date of death, a work charged/contingency
fund employee
was
not
entitled
to
compassionate appointment. While holding
so, the Bench reiterated the opinion in
Indian Bank v. Promila.

14. The aforesaid decision in
Amit Shrivas (supra) was followed by a
two member Bench of this Court in the yet
to be reported decision in the State of
Madhya
Pradesh
v.
Ashish
Awasthi
decided on 18.11.2021 : (Reported in
AIROnline 2021 SC 1047)."

17. After taking note of the seemingly
divergent opinions on the issue, the
Supreme Court observed in Bheemesh
alias Bheemappa :

"15. Let us now come to the
reference pending before the larger Bench.
In State Bank of India v. Sheo Shankar
Tewari (supra), a two member Bench of
this Court noted the apparent conflict
between State Bank of India v. Raj Kumar
and MGB Gramin Bank on the one hand
and Canara Bank vs. M. Mahesh Kumar on
the other hand and referred the matter for
the consideration of a larger Bench. The
order of reference to a larger Bench was
actually dated 8.02.2019.

16. It was only after the aforesaid
reference to a larger Bench that this Court
decided at least four cases, respectively
in (i) Indian Bank v. Promila; (ii)
N.C. Santhosh v. State of Karnataka;
(iii) State of Madhya Pradesh vs. Amit
Shrivas; and (iv) State of Madhya
Pradesh v. Ashish Awasthi. Out of
these four decisions, N.C. Santosh
(supra) was by a three member Bench,
which actually took note of the
reference pending before the larger
Bench.

17. Keeping the above in mind, if
we critically analyse the way in which this
Court has proceeded to interpret the
applicability of a new or modified Scheme
that comes into force after the death of the
employee, we may notice an interesting
feature. In cases where the benefit under
the existing Scheme was taken away or
substituted with a lesser benefit, this Court
directed the application of the new Scheme.
But in cases where the benefits under an
existing Scheme were enlarged by a
modified Scheme after the death of the
employee, this Court applied only the
Scheme that was in force on the date of
death
of
the
employee.
This
is
fundamentally
due
to
the
fact
that
compassionate appointment was always
considered to be an exception to the normal
method of recruitment and perhaps looked
down upon with lesser compassion for the
individual and greater concern for the rule
of law.

18. If compassionate appointment
is one of the conditions of service and is
made automatic upon the death of an
employee in harness without any kind of
scrutiny whatsoever, the same would be
treated as a vested right in law. But it is not
so. Appointment on compassionate grounds
is not automatic, but subject to strict
scrutiny of various parameters including
the financial position of the family, the
economic dependence of the family upon
the deceased employee and the avocation
of
the
other
members
of
the
family.Therefore, no one can claim to have
a
vested
right
for
appointment
on
compassionate grounds. This is why some
of the decisions which we have tabulated
above appear to have interpreted the
applicability
of
revised
Schemes
differently, leading to conflict of opinion.
Though there is a conflict as to whether the
822 INDIAN LAW REPORTS ALLAHABAD SERIES
Scheme in force on the date of death of the
employee would apply or the Scheme in
force on the date of consideration of the
application
of
appointment
on
compassionate grounds would apply, there
is certainly no conflict about the underlying
concern reflected in the above decisions.
Wherever the modified Schemes diluted the
existing benefits, this Court applied those
benefits,
but
wherever
the
modified
Scheme granted larger benefits, the old
Scheme was made applicable.

19. The important aspect about
the conflict of opinion is that it revolves
around two dates, namely, (i) date of death
of the employee; and (ii) date of
consideration of the application of the
dependant. Out of these two dates, only
one, namely, the date of death alone is a
fixed factor that does not change. The next
date namely the date of consideration of the
claim, is something that depends upon
many variables such as the date of filing of
application, the date of attaining of
majority of the claimant and the date on
which the file is put up to the competent
authority. There is no principle of statutory
interpretation which permits a decision on
the applicability of a rule, to be based upon
an indeterminate or variable factor. Let us
take for instance a hypothetical case where
2 Government servants die in harness on
January 01, 2020. Let us assume that the
dependants
of
these
2
deceased
Government servants make applications for
appointment on 2 different dates say
29.05.2020 and 02.06.2020 and a modified
Scheme comes into force on June 01, 2020.
If the date of consideration of the claim is
taken to be the criteria for determining
whether the modified Scheme applies or
not, it will lead to two different results, one
in respect of the person who made the
application before June 1, 2020 and another
in respect of the person who applied after
June 01, 2020. In other words, if two
employees die on the same date and the
dependants of those employees apply on
two different dates, one before the modified
Scheme comes into force and another
thereafter, they will come in for differential
treatment if the date of application and the
date of consideration of the same are taken
to be the deciding factor. A rule of
interpretation which produces different
results,
depending
upon
what
the
individuals
do
or
do
not
do,
is
inconceivable.
This
is
why,
the
managements of a few banks, in the cases
tabulated above, have introduced a rule in
the modified scheme itself, which provides
for all pending applications to be decided
under the new/modified scheme. Therefore,
we are of the considered view that the
interpretation as to the applicability of a
modified Scheme should depend only upon
a determinate and fixed criteria such as the
date of death and not an indeterminate and
variable factor.

20. Coming to the case on hand,
the employee died on 8.12.2010 and the
amendment to the Rules was proposed by
way of a draft notification on 20.06.2012.
The final notification was issued on
11.07.2012. Merely because the application
for
appointment
was
taken
up
for
consideration after the issue of the
amendment, the respondent could not have
sought the benefit of the amendment. The
Judgment of the Division Bench of the
Karnataka High Court in Akkamahadevamma on which the Tribunal as well as
the High Court placed reliance, was not
applicable to the case of compass-ionate
appointments,
as
the
amendment
in
Akkamahadevamma came as a result of the
existing rule being declared to be ultra vires
Articles 14 and 16 of the Constitution."
11 All. Smt. Pancho Devi @ Madhvi Vs. State of U.P. & Ors.
823

18. The principle then laid down is
that the right to consideration of an
appointee for compassionate appointment
is to be governed by the rules in force on
the date of death of the employee in
harness. This interpretation has been
favoured, as observed by their Lordships,
for reason that adopting a rule of
interpretation, which produces different
results, depending upon individual action
and processes would produce varying
results based on the same rights. Therefore,
the date of death of an employee in harness,
which is not something variable but fixed,
has been favoured to determine the right of
the dependent for a consideration of the
claim
for
compassionate
appointment
according to the Dying-in-Harness Rules in
force on that date.

19. In this case, there is a further
feature to be noticed. In most of the
Authorities, where the issue has arisen as to
which rule amended or otherwise, or newly
introduced would apply to govern a
dependant's
claim
for
compassionate
appointment, were cases where there was a
change or the introduction of a new Rule to
the Dying-in-Harness Scheme or the
Dying-in-Harness Rules. In the present
case, there is no change at all in the
Rules of 1974. The change has come
about on account of the Rules relating
to eligibility for appointment to a Class
IV
post
in
the
Civil
Court
establishment. The further question that
may be posed is, if the principle in
Bheemesh alias Bheemappa would
apply to the present case, where there is
no change in the Dying-in-Harness
Rules or the Scheme, but the criteria of
eligibility under the relevant service
rules. To the understanding of this
Court, this may be a difference of form,
but not of substance.

20. Ultimately, the issue is : What are
the whole gamut of Rules that would
govern the right of a dependant to seek
compassionate appointment after the death
of an employee in harness? Whether the
change in Rules affecting the dependant's
candidature comes from the Dying-inHarness Rules or from the recruitment
Rules applicable, is of no consequence. It is
of no consequence, in the opinion of this
Court, for reason that the principle is same
that the eligibility for consideration must
depend on an interpretation that turns on a
determinate and fixed criteria; not on
something that is subject to variation by
individual action or inaction. If for
instance, in the present case, the petitioner's
application had been examined in the
correct perspective by the learned District
Judge, when it was first rejected vide order
dated 10.05.2011, based on the report of
the Grievance Redressal Committee dated
13.04.2011, an order that did not find
favour with this Court, the result would
have certainly been different. The order
dated 03.05.2013 was passed, directing a
reconsideration
of
the
petitioner's
candidature in accordance with the Rules of
1955, within a period of two months. What
if the Grievance Redressal Committee were
more prompt and put in a report within a
week and the learned District Judge had to
pass his orders not on 03.09.2013, but on
the some day in the month of June, 2013, or
in the first three days of July, 2013? The
result
of
the
petitioner's
claim
for
compassionate appointment would have
been very different. It is these vagaries
based on individual action or inaction that
the interpretation
in Bheemesh
alias
Bheemappa seeks to eschew.

21. I have taken the same view in a
very recent decision in Bechan Giri vs.
Union of India, 2023 (8) ADJ 692, albeit
824 INDIAN LAW REPORTS ALLAHABAD SERIES
in the context of the introduction of a
scheme for compassionate appointment that
came into effect in the respondent's
establishment in that case after the date of
demise of the employee in harness. But the
principle in the said decision, again based
on Bheemesh alias Bheemappa, is the
same.

22. No other point was pressed on
behalf of either party.

23. In the result, this petition
succeeds and shall stand allowed. The
impugned order dated 03.09.2013, passed
by the learned District Judge, Firozabad is
hereby quashed. A mandamus is issued to
the learned District Judge, Firozabad to
reconsider
the
petitioner's
claim
for
compassionate
appointment
within
a
month, in accordance with law and the
guidance in this judgment. Costs easy.
----------
(2023) 11 ILRA 824
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.10.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ-A No. 4493 of 2023
And
Writ-A No. 7492 of 2023

Neelam Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Savita Jain

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Government Servants
dying-in-harness Rules, 1974 - R. 2 (c)
and 7 - Compassionate appointment -
Both son and widowed daughter-in-law
staked claim - Son was given primacy
over widowed daughter-in-law - Validity
challenged - Held, Rule 2 does not
indicate any primacy required to be
accorded to one member of family with
regard to claim of another - It is required
to be adverted to only in accordance with
Rule 7 which provide that the decision has
to be taken keeping in view the overall
interest of the welfare of entire family,
particularly
the
widow
and
minor
members thereof - High Court declared
impugned order contrary to Rule 7. (Para
11, 15 and 16)
Writ petition allowed. (E-1)
List of Cases cited:
1. General Manager (D & PB) & ors. Vs Kunti
Tiwari & anr.; (2004) 7 SCC 271
2. Umesh Kumar Nagpal Vs St. of Har.; (1994) 4
SCC 138

(Delivered by Hon'ble Manish Mathur, J.)

1.

Heard
learned counsel
for
petitioner and learned State Counsel for
opposite parties.

2. Since both the petitions involve
same cause of action, they are being
disposed of by means of a common
judgment.

3. Writ-A No. 4493 of 2023 has been
filed by widowed daughter-in-law of the
deceased
challenging
order
dated
22.05.2023
whereby
her
claim
for
compassionate appointment under the U.P.
Government
Servants
dying-in-harness
Rules, 1974 has been rejected.

4. Writ-A No. 7492 of 2023 has been
filed by the unmarried son of deceased for
a direction to opposite parties to appoint