# Smt. Priti Sharma v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 736
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-03-15
- **Case number:** Writ A No. 11612 of 2017
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-priti-sharma-v-state-of-u-p-ors-47301
- **Pages:** 11

## Headnote

Law
-
Education
-
Compassionate
Appointment
-
Uttar
Pradesh Secondary Education Services
Commission
(Removal
of
Difficulties)
(Second) Order, 1981- Uttar Pradesh
Education Service Selection Board Act,
1982: Sections 16G, 21-C, 33-D, 33-E, 33F and 33G; Uttar Pradesh Recruitment of
Dependents
of
Government
Servants
Dying in Harness Rules, 1974: Rule 2(a).

U.P. Intermediate Education Act, 1921-
Regulation 103 - A dependent of a
deceased employee of an aided and
recognised
Intermediate
College
is
entitled
to
a
consideration
for
compassionate appointment, by virtue of
Regulation 103. On the plain terms of the
Statute, it is evident that where an employee
is appointed according to the Rules
prescribed against a vacancy that is
substantive, and dies in harness, his
dependents would be entitled to apply
u/Regulation 103. It would be reading
something more into the Statute to infer that
the employee or teacher also ought to be
substantively appointed or on a permanent
tenure. If that were the intention of the Statute,
words to that effect would have been employed,
and not ones that fall short of requiring the
deceased employee to be permanently or
substantively appointed. (Para 11, 13)

It cannot be said that the appointment of the
petitioner's husband was one not made in
8 All. Smt. Priti Sharma Vs. State of U.P. & Ors.
737
accordance with the Rules prescribed, as
envisaged u/Regulation 103. It is, by no means,
an appointment dehors the Rules. Only ground
to deny appointment to the petitioner, is that
her husband was not appointed in a substantive
capacity to the post that
is admittedly
substantive. (Para 14, 22)

Petitioner's case makes her eligible for a
consideration
of
her
candidature
for
compassionate appointment under Regulations
103 - 107 of Chapter III of the Regulations
framed under the Act of 1921.

B. The fact that the petitioner's husband
would have been regularised u/s 33G, if
he had continued in service, or to express
the more macabre side of it, stayed on in
this mortal world until 22.3.2016, when
Section 33G was inserted by U.P. Act No. 7
of 2016, seems not to be much disputed.
(Para 12)

Equity also requires the petitioner's case to be
considered because the petitioner's husband
served the College continuously from 1995 to
2012, until he died. In case he had continued in
service,
possibly,
he
would
have
been
considered for substantive appointment and
granted one in terms of S. 33G of the Act of
1982, which came into force w.e.f. 22.3.2016.
His untimely death cut short that possibility. No
doubt, this does not create a legal right in
favour
of
the
petitioner
to
receive
a
consideration of her candidature on that ground,
but even otherwise the legal right has already
been established under the terms of Regulation

## Text

736 INDIAN LAW REPORTS ALLAHABAD SERIES
State of M.P. Vs. Sanjay Kumar Pathak, I
am of the considered opinion that even if
previous recruitment was cancelled and
change of policy by the State has been
affirmed in the case of Himanshu Shukla
(supra), which judgment has otherwise
been affirmed with dismissal of Special
Appeal and Special Leave Petitions, the
applicants would be entitled to the limited
protection of applying afresh against
advertisement dated 15.3.2018 and also
from the age bar imposed in accordance
with Rule 10 of the Rules of 1983.

27. Ordinarily this Court would have
referred the matter to State Government for
grant of age relaxation in terms of Rule 3 of
the Rules of 1992 but as this Court has
already
permitted
them
to
appear
provisionally for selection under its interim
order and certain petitioners have also
secured their selection on the strength of
their merits it would be appropriate to
direct
declaration
of
their
result
notwithstanding the fact that they have
become
overage
under
the
new
advertisement. This direction, however, is
on the facts of this case and shall not be
treated as a precedent in other cases.
Respondent Commission is thus directed to
declare result of writ petitioners who have
appeared
against
advertisement
dated
15.3.2018 and to consider their case for
appointment, if they are selected and fulfill
other
eligibility
(except
age).
Such
consideration would be made within a
period of two months from today.

28. Writ petitions stand disposed of,
accordingly. No order is passed as to costs.
----------
(2021)08ILR A736
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2021

BEFORE

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

Writ A No. 11612 of 2017

Smt. Priti Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arvind Kumar Singh

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Education
-
Compassionate
Appointment
-
Uttar
Pradesh Secondary Education Services
Commission
(Removal
of
Difficulties)
(Second) Order, 1981- Uttar Pradesh
Education Service Selection Board Act,
1982: Sections 16G, 21-C, 33-D, 33-E, 33F and 33G; Uttar Pradesh Recruitment of
Dependents
of
Government
Servants
Dying in Harness Rules, 1974: Rule 2(a).

U.P. Intermediate Education Act, 1921-
Regulation 103 - A dependent of a
deceased employee of an aided and
recognised
Intermediate
College
is
entitled
to
a
consideration
for
compassionate appointment, by virtue of
Regulation 103. On the plain terms of the
Statute, it is evident that where an employee
is appointed according to the Rules
prescribed against a vacancy that is
substantive, and dies in harness, his
dependents would be entitled to apply
u/Regulation 103. It would be reading
something more into the Statute to infer that
the employee or teacher also ought to be
substantively appointed or on a permanent
tenure. If that were the intention of the Statute,
words to that effect would have been employed,
and not ones that fall short of requiring the
deceased employee to be permanently or
substantively appointed. (Para 11, 13)

It cannot be said that the appointment of the
petitioner's husband was one not made in
8 All. Smt. Priti Sharma Vs. State of U.P. & Ors.
737
accordance with the Rules prescribed, as
envisaged u/Regulation 103. It is, by no means,
an appointment dehors the Rules. Only ground
to deny appointment to the petitioner, is that
her husband was not appointed in a substantive
capacity to the post that
is admittedly
substantive. (Para 14, 22)

Petitioner's case makes her eligible for a
consideration
of
her
candidature
for
compassionate appointment under Regulations
103 - 107 of Chapter III of the Regulations
framed under the Act of 1921.

B. The fact that the petitioner's husband
would have been regularised u/s 33G, if
he had continued in service, or to express
the more macabre side of it, stayed on in
this mortal world until 22.3.2016, when
Section 33G was inserted by U.P. Act No. 7
of 2016, seems not to be much disputed.
(Para 12)

Equity also requires the petitioner's case to be
considered because the petitioner's husband
served the College continuously from 1995 to
2012, until he died. In case he had continued in
service,
possibly,
he
would
have
been
considered for substantive appointment and
granted one in terms of S. 33G of the Act of
1982, which came into force w.e.f. 22.3.2016.
His untimely death cut short that possibility. No
doubt, this does not create a legal right in
favour
of
the
petitioner
to
receive
a
consideration of her candidature on that ground,
but even otherwise the legal right has already
been established under the terms of Regulation
103. (Para 23)

Writ petition allowed. (E-3)

Precedent distinguished:

1. Jahaj Pal Vs District Inspector of Schools,
Muzaffarnagar & anr., (2019) 2 UPLBEC 1486
(Para 15, 16)

2. Pawan Kumar Yadav Vs St. of U.P. & anr.,
2011 (1) AWC 1028 (FB) (Para 17 to 19)

Present petition challenges order dated
17.12.2016, passed by DIOS, Aligarh.
(Delivered by Hon'ble J.J. Munir, J.)

Smt. Priti Sharma, the petitioner, is the
widow of the late Jaikrishna Bhardwaj, an
Assistant Teacher with the DAV Inter
College, Aligarh1. The College imparts
education up to Class XII, and is
recognised
under
the
Uttar
Pradesh
Intermediate Education Act, 19212. The
College receives grant-in-aid from the State
Government and managed by a private
management.

2. There is little quarrel that the
petitioner's husband, the late Jaikrishna
Bhardwaj, was duly appointed to the post
of Assistant Teacher in L.T. Grade with the
College by the respondent-Management,
through a letter of appointment dated
28.07.1995. This appointment was made on
a short-term vacancy against a substantive
post,
on
account
of
the
permanent
incumbent, Mahesh Chandra Kansal, being
promoted ad-hoc to the post of a Lecturer
with the College, on 02.09.1994. The
appointment was, therefore, terminable,
upon the joining of an incumbent selected
by the Uttar Pradesh Secondary Education
Services Selection Commission, or upon
Mahesh Chandra Kansal joining back his
substantive post, whichever be earlier. The
appointment of the petitioner's husband was
one made in accordance with Paragraph 2
of the Uttar Pradesh Secondary Education
Services
Commission
(Removal
of
Difficulties) (Second) Order, 19813. The
petitioner's husband joined on 01.08.1995,
and financial approval to his appointment
was granted by a detailed order dated
13.05.1996,
passed
by
the
District
Inspector of Schools4 pursuant to a
direction by this Court made in Civil Misc.
Writ Petition No. 5327 of 1996 vide
judgment and order dated 09.06.1996. That
writ
petition
was
instituted
by
the
738 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner's husband. The order granting
financial approval to the appointment of the
petitioner's husband, made after examining
its legality, became final and was not
questioned either by the Management or
revoked by the Education Authorities.

3. Mahesh Chandra Kansal retired from
service on 30.06.1997, while serving as an adhoc Lecturer, but holding his lien on the post of
L.T. Grade Teacher, to which the petitioner's
husband was appointed, to fill up the short-term
vacancy. It appears that upon retirement of
Kansal, payment of salary to the petitioner's
husband was stopped with effect from the
month of July, 1997 on ground that the vacancy
had turned into a substantive one. The
petitioner's husband represented in the matter to
the Education Authorities, including the
Government. The Special Secretary to the
Government, vide order dated 27.02.1999, and
the Deputy Director of Education (SecondaryI), Directorate of Education, Lucknow, vide
order dated 08.03.1999, issued directions to the
effect that the petitioner's husband was entitled
to continue, till a regularly selected candidate by
the Commission/Selection Board joined. In
compliance with the said order, the DIOS,
Aligarh passed an order dated 11.05.1999,
sanctioning
payment
of
the
petitioner's
husband's salary, until a regularly selected
candidate by the Commission/Board joined.
The appointment was expressed to be purely
temporary and in the L.T. Grade. This fact
about approval of tenure for the petitioner's
husband, until a regularly selected candidate
joined, is admitted to the respondents. It is also
admitted that on the strength of the aforesaid
orders of the Education Authorities, the
petitioner's late husband continued in service as
an L.T. Grade Teacher, until his decease on
06.01.2012.

4. Shorn of unnecessary details, the
petitioner, who is a dependent of the late
Jaikrishna
Bhardwaj,
applied
for
compassionate appointment, inasmuch as
Bhardwaj's untimely demise had plunged
the family into a grave financial crisis.
Again, eschewing recapitulation of all that
litigation
that
the
petitioner
had
to
undertake to enforce a consideration of her
claim
to
compassionate
appointment,
suffice it to say, that the petitioner's claim
was rejected by the impugned order dated
17.12.2016 passed by the DIOS, Aligarh.

5. Aggrieved, this writ petition has
been instituted.

6. A perusal of the impugned order
shows that at the tail-end of a long-winded
narration of facts and the parties' case, the
short reason assigned to disregard the
petitioner's claim is that her husband's
'services had not been regularised', when he
died on 06.01.2021. The way parties have
taken stand before this Court in their
pleadings,
what
appears
from
the
expression that 'services of Bhardwaj had
not been regularised' on the date of his
death, is that he had not been granted a
substantive and permanent appointment on
the post of an L.T. Grade Teacher, until his
death. In this regard, reference may be
made to the stand of the DIOS in his
supplementary
counter
affidavit
dated
18.09.2020, where he has justified the order
impugned, asserting :

"...... the then, District Inspector
of Schools, Aligarh after hearing all
concerned parties passed an order no. 789395/2016-17
dated
07.12.2016
stating
therein that since the services of Late
Jaikrishna Bhardwaj were not regularized
and there is no provision for giving any
service benefits to the dependents of
temporary/non regularized employee, as
such the petitioner, Priti Sharma was not
8 All. Smt. Priti Sharma Vs. State of U.P. & Ors.
739
given
any
specific
benefit
of
the
dependents of deceased employee and her
representation
has
been
rejected
accordingly. ....."

7. Next, following the aforesaid
assertion, the DIOS has made a reference to
the provision of Section 33G of the Uttar
Pradesh
Education
Service
Selection
Boards Act, 19825 quoting the provision in
extenso. There is then an assertion in the
following terms carried in Paragraph No.
11 of the counter affidavit under reference :

" The aforesaid Government
Order is implemented since 22.03.2016
whereas Shri Jaikrishna Bhardwaj died on
06.01.2021 and at the time of issuance of
the aforesaid Government Order, husband
of petitioner, Jaikrishna Bhardwaj was not
in service, as such there is no question of
regularizing of his services. Since at the
time of death Jaikrishna Bhardwaj, his
services were not regularized, as such his
dependent (petitioner) is not entitled for
any relief under the provisions of Dying in
Harness Rules. "

8. It is not the respondent's case that
the petitioner's husband had been appointed
or permitted to function on the post of an
L.T. Grade Teacher with the College
dehors
the
Rules.
Rather,
it
is
acknowledged that he was appointed
against a short-term vacancy caused by the
ad-hoc promotion of Mahesh Chandra
Kansal to the post of a Lecturer, in
accordance with Paragraph 2 of the
Removal of Difficulties (Second) Order. It
has also been acknowledged that after
Kansal's retirement, upon the vacancy
whereagainst the petitioner was appointed
turning substantive, his salary was stopped
for a short while, but the financial approval
to his appointment was restored by the
DIOS,
under
orders
of
the
State
Government and the Deputy Director of
Education, permitting the petitioner to
continue on a temporary basis, until a
regularly selected candidate from the
Commission/Board joined. It is in terms of
the aforesaid appointment and tenure that
the petitioner's husband was employed,
when he died on 06.01.2012.

9. It is vehemently argued by Mr.
Sharad Chandra Upadhyay, the learned
State Law Officer appearing for the
respondents, that a teacher, unless he is
substantively appointed to a post, the
benefit of a consideration for appointment
under the Dying in Harness Regulations is
not available to his dependents.

10.

Learned
Counsel
for
the
petitioner, Mr. Arvind Kumar Singh, on the
other hand, submits that a substantive
appointment, in the sense of a permanent
appointment, is not what is envisaged under
the Regulations 103 - 107 of Chapter III of
the Regulations, framed under the Act of
1921. He urges that all that is envisaged
under the Regulations last mentioned is that
the deceased-employee, serving in a
recognised and aided institution as a
Teacher or as a Class III employee, should
be one who has been appointed in
accordance with the Rules. It is not
necessary that he should be permanently
appointed to a substantive post.

11. I have considered the rival
submissions made by the learned Counsel
for both parties. A dependent of a deceased
employee of an aided and recognised
Intermediate College is entitled to a
consideration
for
compassionate
appointment, by virtue of Regulation 103
of Chapter III of the Regulations framed
under the Act of 1921. It would, therefore,
740 INDIAN LAW REPORTS ALLAHABAD SERIES
be profitable to refer to the aforesaid
regulation. It is quoted in extenso :

"103. इस विवनयमािली में दी गई
विसी बात िे होते हुए भी जहाूँ विसी मान्यता
प्राि, सहायता प्राि संस्था िा अध्यापि या
वशक्षणेत्तर िमिचारी िगि िे विसी िमिचारी िी,
जो विवहत प्रवक्रया िे अनुसार वनयुक्त विया गया
हो, सेिा िाल में मृत्यु हो जाये, तो उसिे िुटुि
िे एि सदस्य िो, जो 18 िर्ि से िम आयु िा
न हो, प्रवशवक्षत स्नाति िी श्रेणी में अध्यापि िे
पद रूप में या विसी वशक्षणेत्तर पद पर, यवद
िह पद िे वलये विवहत अपेवक्षत शैवक्षि
प्रवशक्षण अहिताये, यवद िोई हों, रखता हो और
वनयुखक्त िे वलये अन्यथा उपयुक्त हो, वनयुक्त
विया जा सिता है:

स्पष्टीिरण-
इस
विवनयम
िे
प्रयोजनाथि "िुटुि िा सदस्य" िा तात्पयि मृत
िमिचारी िी विधिा/विधुर, पुत्र, अवििावहत या
विधिा पुत्री से होगा।

वटप्पणी- यह विवनयम और विवनयम
104 से 107 ति उन मृत िमिचाररयों िे संबंध
में लागू होंगे वजनिी मृत्यु 1 जनिरी, 1981 िो
या उसिे पश्चात् हुई हो।"

12. The opening words of this
Regulation show that it carries a nonobstante clause, giving it an overriding
effect vis-à-vis other Regulations framed
under the Act. The right created under the
Regulation is attracted only in the case of a
Teacher or Class-III employee, who dies in
harness. It further requires that such teacher
or employee should be employed with an
institution, which is recognised under the
Act of 1921 and in receipt of Government
grant-in-aid. The next requirement is that
the teacher or the employee concerned
should have been appointed according to
the prescribed procedure. The precise
words used in the Regulations are : "Jo
vihit prakriya ke anusar niyukt kiya gaya
ho". This would translate in English to read
: "Who has been appointed according to the
procedure prescribed". There are other
conditions then to be satisfied, regarding
the dependent to be a person above the age
of 18 years and holding the prescribed
educational and training qualifications, if
any, prescribed for the post to which he/she
is appointed. Here, there is no quarrel about
the
petitioner's
qualifications,
to
be
appointed to one or the other posts
envisaged under Regulation 103. At least,
this issue has not arisen so far. The
petitioner's candidature has been rejected
because in the opinion of the DIOS, the
services
of
the
petitioner's
deceased
husband had not been regularised until his
death. Now, what the DIOS means by his
opinion that the services of the petitioner's
deceased husband were not regularised, is
no more than this, that he had not been
permanently appointed to the substantive
post, against which he was functioning, in a
temporary capacity, till a regularly selected
candidate by the Commission/Board joined.
The fact that the petitioner's husband would
have been regularised under Regulation
33G, if he had continued in service, or to
express the more macabre side of it, stayed
on in this mortal world until 22.03.2016,
when Section 33G was inserted by U.P. Act
13 of 2016, seems not to be much disputed.

13. To the understanding of this
Court, what Regulation 103 envisages is
the appointment of the deceased teacher or
Class III employee made in accordance
with Rules prescribed; it does not speak
about the appointment being substantive,
or,
more
particularly,
permanent.
A
temporary employee can also be appointed
and, in fact, ought to be appointed in
accordance with the Rules prescribed
against a substantive post. The position
would be different, if the post against
8 All. Smt. Priti Sharma Vs. State of U.P. & Ors.
741
which the employee is appointed, in
accordance with Rules prescribed, is not
substantive, but a temporary vacancy,
where the some regular incumbent holds
lien. If that were the case, a temporary or
stop-gap appointment of an incumbent on a
post that is temporary in nature, may not be
within the scope of Regulation 103,
affording the dependent of a teacher or
employee appointed against a temporary
vacancy,
to
claim
compassionate
appointment. Therefore, on the plain terms
of the Statute, it is evident that where an
employee is appointed according to the
Rules prescribed against a vacancy that is
substantive, and dies in harness, his
dependents would be entitled to apply
under Regulation 103. It would be reading
something more into the Statute to infer
that the employee or teacher also ought to
be substantively appointed or on a
permanent tenure. If that were the intention
of the Statute, words to that effect would
have been employed, and not ones that fall
short of requiring the deceased employee to
be permanently or substantively appointed.

14.

The
appointment
of
the
petitioner's deceased husband was made
initially on 28.07.1995, in the short-term
vacancy of an L.T. Grade Teacher, caused
on account of an ad-hoc promotion of the
incumbent to the post of a Lecturer. The
DIOS, while granting financial approval to
the petitioner's husband, initially appointed
vide
order
dated
13.12.1996,
has
acknowledged the appointment to be one
made in accordance with Paragraph 2 of the
Removal of Difficulties (Second) Order,
issued under the Act of 1982. It was,
therefore, an appointment that, from the
inception, was one made in accordance
with the Rules prescribed. The appointment
of the petitioner's husband, therefore,
cannot be one said to be made dehors the
Rules. No doubt, upon the promotee's
retirement from service on 30.07.1997, the
short-term vacancy was converted into a
substantive one, and the salary of the
petitioner's husband was stopped for the
month of July, 1997. But, admittedly, he, in
accordance with the Rule then in force, was
permitted by the State Government and the
Deputy Director of Education, vide orders
dated
27.02.1999
and 08.03.1999
to
continue in service until a regularly
selected
candidate
by
the
Commission/Board joined.

15. Learned Counsel for the petitioner
has referred to the Full Bench decision of
this Court in Jahaj Pal v. District
Inspector of Schools, Muzaffarnagar and
Another6 to submit that the petitioner's
husband
having
been
appointed
in
accordance with Rules, that is to say,
Paragraph 2 of the Removal of Difficulties
(Second) Order, he was entitled to a
consideration of his candidature for a
substantive and permanent appointment.
The decision
in Jahaj
Pal
(supra)
expressly makes it inapplicable to the rights
flowing from Sections 21-C, 33-D, 33-E,
33-F and 33-G of the Act of 1982. In this
regard, Paragraph No. 208 of the report in
Jahaj Pal is eloquent. It reads :

208. We do not propose to
expand our observations in respect of
subsequent provisions made for substantive
appointment/absorption namely, Sections
21-C, 33-D, 33-E, 33-F and 33-G, since
those issues are not necessary to examine to
answer the questions referred to us.

16. For one, the decision in Jahaj Pal
was about the right of an ad-hoc appointee,
appointed against a short-term vacancy,
where the appointment was subsequently
converted into a substantive vacancy. It
742 INDIAN LAW REPORTS ALLAHABAD SERIES
was answered in favour of the teacher
continuing in service, till his candidature
was considered in accordance with the
provisions of Section 33B of the Act of
1982. The said decision was about the
rights of a teacher so appointed to continue
in service and relates to a different time
period of appointment, against a short-term
vacancy. The rights there relate to the
employee
himself
to
continue
in
employment, who was appointed as an L.T.
Grade Teacher in a short-term vacancy, in
accordance
with
the
Removal
of
Difficulties (Second) Order, on or before
14.03.1991 and his rights were governed by
Section 33B of the Act of 1982. So far as
the employee himself is concerned, the
decision in Jahaj Pal relates to a different
period of time, regarding appointment
where rights are governed by Section 33B.
The case here relates to a much later period
of time, where the legislature had amended
the
Statute
to
take
into
account
appointments made in accordance with
Removal of Difficulties (Second) Order
against
a
temporary
vacancy,
that
subsequently turned permanent. But, those
are not the issues that would arise for
consideration in the present case. Here, the
only issue is about what Regulation 103
(supra) envisages, where it says that the
deceased employee or teacher should have
been appointed in accordance with the
Rules prescribed. Jahaj Pal is not an
authority on the said question.

17. Mr. Upadhyay, the learned State
Law Officer appearing for the State, on the
other hand, has relied on a Full Bench
decision of this Court in Pawan Kumar
Yadav v. State of U.P. & Others7. The
decision of the Full Bench in Pawan
Kumar Yadav (supra) was about the right
to
compassionate
appointment
of
dependents of daily wagers and workcharged
employees,
employed
in
connection with the affairs of the State
Government.
Two
questions
were
considered by the Full Bench, which read :

1. Whether a daily wager and
work charge employee, employed in
connection with the affairs of Uttar
Pradesh, who is hot holding any post
whether substantive or temporary is a
'Government Servant' within the meaning
of Rule 2 (a) of U.P. Recruitment of
Dependents of Government Servants Dying
in Harness Rules, 1974?

2. Whether the judgement in Smt.
Pushpa Lata Dixit Vs. Madhyamik Shiksha
Parishad and others, 1991 (18) ALR 591;
Smt. Maya Devi Vs. State of U.P. (Writ
Petition No. 24231 of 1998 decided on
02.03.1998); State of U.P. Vs. Maya Devi
(Special Appeal No. 409 of 1998); Santosh
Kumar Misra Vs. State of U.P. & Ors.,
2001 (4) ESC (Alld) 1615; and Anju Misra
Vs. General Manager, Kanpur Jal Sansthan,
(2004) 1 UPLBEC 201, giving benefit of
compassionate
appointment
to
the
dependents of daily wager and work-charge
employees, have been correctly decided ?

18. These were answered against the
employee in the following terms :

26. On the aforesaid discussion,
and in view of the law laid down in General
Manager, Uttaranchal Jal Sansthan Vs.
Laxmi Devi (Supra), we answer the
questions posted as follows :-

1. A daily wager and workcharge
employee employed in connection with the
affairs of the Uttar Pradesh, who is not
holding any post, whether substantive or
temporary, and is not appointed in any
regular vacancy, even if he was working
for more than 3 years, is not a 'Government
servant' within the meaning of Rule 2 (a) of
8 All. Smt. Priti Sharma Vs. State of U.P. & Ors.
743
U.P.
Recruitment
of
Dependents
of
Government Servants (Dying in Harness)
Rules, 1974, and thus his dependents on his
death in harness are not entitled to
compassionate appointment under these
Rules.

2. The judgements in Smt.
Pushpa
Lata
Dixit
Vs.
Madhyamik
Shiksha Parishad and others, 1991 (18)
ALR 591; Smt. Maya Devi Vs. State of
U.P. (Writ Petition No. 24231 of 1998
decided on 02.03.1998); State of U.P. Vs.
Maya Devi (Special Appeal No. 409 of
1998); Santosh Kumar Misra Vs. State of
U.P. & Ors., 2001 (4) ESC (Alld) 1615;
and Anju Misra Vs. General Manager,
Kanpur Jal Sansthan, (2004) 1 UPLBEC
201 giving benefit of compassionate
appointment to the dependents of daily
wage and workcharge employee have not
been correctly decided.

19. The decision in Pawan Kumar
Yadav, no doubt, is one that relates to the
dependent's
right
to
compassionate
appointment, in case of an employee dying
in harness, but the same is of little
relevance.
The
decision
relates
to
interpretation of Rule 2(a) of the Uttar
Pradesh Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 19748. Rule 2(a) last mentioned
carries a very elaborate definition of as to
who would be a government servant. Mr.
Upadhyay has sought to rely on this
decision by reference to the interpretation
of the words "regularly appointed" by their
Lordships of the Full Bench, occurring in
Rule 2(a) of the Rules of 1974. He has
sought to draw an analogy of what
"regularly appointed" would mean in the
context of the entitlement to compassionate
appointment under Regulation 103, framed
under the Act of 1921. Rule 2(a) of the
Rules of 1974 reads :

(a) "Government servant" means
a
Government
servant
employed
in
connection with the affairs of Uttar Pradesh
who-

(i)
was
permanent
in
such
employment; or

(ii) though temporary had been
regularly appointed in such employment;or

(iii)
though
not
regularly
appointed,
had
put
in
three
years'
continuous service in regular vacancy in
such employment.

Explanation.-"Regularly
appointed" means appointed in accordance
with
the
procedure
laid
down
for
recruitment to the post or service, as the
case may be;

(b)
"deceased
Government
servant" means a Government servant who
dies while in service;

(c) "family" shall include the
following
relations
of
the
deceased
Government servant:

(i) Wife or husband;

(ii) Sons;

(iii) Unmarried and widowed
daughters;

(d) "Head of Office" means Head
of
Office
in
which
the
deceased
Government servant was serving prior to
his death.

20. The principle on which the
decision of their Lordships in Pawan
Kumar Yadav has turned, is adumbrated
in Paragraph Nos. 23, 24 and 25 of the
report. These read :

23. The regular need of work,
of which presumption has been set to
arise after working for long number of
years and the principles of legitimate
expectations, would not mean that there
was a regular vacancy. The word
'regular' vacancy has not been defined
744 INDIAN LAW REPORTS ALLAHABAD SERIES
but that a distinction must be made
between a need of regular employees,
and the existence of regular vacancies. In
Uttaranchal Jal Sansthan Vs. Laxmi Devi
(Supra)
the
Supreme
Court
said;
'indisputably the services of the deceased
had not been regularised. in both the cases
the writ petitions were filed but no effective
relief thereto had been granted. In the case
of late Leeladhar Pandy, allegedly he was
drawing salary on regular scale of pay. that
may be so but the same would not mean
that there existed a regular vacancy".

24. The Supreme Court further
went on to explain in para 18 to 20 as
follows:-

"18. Indisputably having regard
to the equality clause contained in Articles
14 and 16 of the Constitution of India
whether the appointment is in a regular
vacancy or not is essentially a question of
fact. Existence of a regular vacancy would
mean a vacancy which occurred in a post
sanctioned by the competent authority. For
the said purpose the cadre strength of the
category to which the post belongs is
required to be taken into consideration. A
regular vacancy is which arises within the
cadre strength.

19. It is a trite law that a regular
vacancy cannot be filled up except in terms
of the recruitment rules as also upon
compliance of the constitutional scheme of
equality. In view of the explanation
appended to Rule 2(a), for the purpose of
this case we would, however, assume that
such
regular
appointment
was
not
necessarily to be taken recourse to. In such
an event sub-clause (iii) of clause (a) as
also the explanation appended thereto
would be rendered unconstitutional.

20. The provision of law which ex
facie violates the equality clause and
permits appointment through the side door
being unconstitutional must be held to be
impermissible and in any event requires
strict interpretation. It was, therefore, for
the respondents to establish that at the point
of time the deceased employees were
appointed, there existed regular vacancies.
Offers of appointment made in favour of
the deceased have not been produced."

25.
In
General
Manager,
Uttaranchal Jal Sansthan Vs. Laxmi Devi
(Supra) the Supreme Court considered and
interpreted the expression 'regular vacancy'
in respect of same Rules namely U.P.
Recruitment of Dependants of Government
Servant (Dying in Harness) Rules, 1974.
The
judgement
of
the
Apex
Court
interpreting the same Rules and deciding
the questions posed before us squarely
covers question No.1, in favour of the State
and is binding on the High Court.

(emphasis by Court)

21. It is apparent that what their
Lordships held is that the existence of a
regular
vacancy,
against
which
the
deceased
government
servant
was
appointed in accordance with the procedure
prescribed, was a sine qua non for his
dependents
to
claim
a
right
to
compassionate appointment. A distinction
was drawn between the need for regular
employment and the existence of a regular
vacancy,
under
the
Rules
of
1974.
Therefore, the long continuance of the
deceased employee as a daily wager or
under the work-charged establishment, but
not against a regular vacancy, was held not
to
entitle
his
dependents
to
claim
consideration
for
compassionate
appointment.

22. Here, there is no quarrel that there
was a regular vacancy to begin with, albeit
short-term, against which the petitioner's
late husband was appointed in accordance
with the Rules. He was appointed, to be
8 All. Smt. Priti Sharma Vs. State of U.P. & Ors.
745
emphasized, in accordance with Paragraph
2 of the Removal of Difficulties (Second)
Order. That he was so appointed, is a fact,
which the DIOS has acknowledged in his
order dated 13.05.1996, granting financial
approval to the appointment. He was then
permitted by the State Government, upon
the vacancy turning permanent, to continue
till a regularly selected candidate by the
Commission/Board joined. The petitioner's
husband died in harness, while continuing
on those terms. It cannot, therefore, be said
that the appointment of the petitioner's
husband was one not made in accordance
with the Rules prescribed, as envisaged
under Regulation 103 of Chapter III of the
Regulations framed under the Act of 1921.
It is, by no means, an appointment dehors
the Rules. Also, it is an appointment
against a substantive vacancy, though not
one that conferred a permanent tenure upon
petitioner's deceased husband. It is also not
the respondent's case that the appointment
of the petitioner's deceased husband was
one not made in accordance with the Rules
prescribed. That is not the case urged either
in the impugned order or the stand taken
before this Court in the counter affidavit.
All that the respondents say, to deny
appointment to the petitioner, is that her
husband was not appointed in a substantive
capacity to the post that is admittedly
substantive. They do not say that he was
not appointed in accordance with the Rules
prescribed.

23. In the opinion of this Court,
therefore, the petitioner's case makes her
eligible for a consideration of her
candidature
for
compassionate
appointment under Regulations 103 - 107
of Chapter III of the Regulations framed
under the Act of 1921. This being the
position under the law, equity also
requires the petitioner's case to be
considered. This is so because the
petitioner's husband served the College
continuously from 1995 to 2012, until he
died. In case he had continued in service,
possibly, he would have been considered
for substantive appointment and granted
one in terms of Section 16G of the Act of
1982, which came into force w.e.f.
22.03.2016. His untimely death cut short
that possibility. No doubt, this does not
create a legal right in favour of the
petitioner to receive a consideration of
her candidature on that ground, but that
legal right is established under the terms
of Regulation 103, as already said.

24. The equity, therefore, that arises
in favour of the petitioner is that her
family have plunged into poverty on
account of the sudden demise of her
husband and her circumstances have been
detailed in ample measure, that require
the family to be salvaged. It is on the
aforesaid parameters, therefore, that the
petitioner's right to be considered for
compassionate
appointment
must
be
evaluated by the DIOS-respondent.

25. In the result, this petition
succeeds
and
stands
allowed.
The
impugned order dated 07.12.2016 passed
by the DIOS, Aligarh is hereby quashed.

26. Let a writ of mandamus issue,
commanding
the
DIOS,
Aligarh
to
consider
the
petitioner's
case
for
compassionate
appointment
in
accordance with law and remarks in this
judgment, within a month of receipt of a
copy of this judgment.

27. Let this order be communicated
to the DIOS, Aligarh by the Registrar
(Compliance).
----------
746 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)08ILR A746
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.07.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 12120 of 2021

Ashok Kumar Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sameer Kalia, Srideep Chatterjee

Counsel for the Respondents:
C.S.C.

A. Service Law - Suspension - U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999- Rule 4 - The
disciplinary
authority
would
record
reasons
and
satisfaction
in
the
suspension order against an employee.
The respondents while passing the impugned
order of suspension have failed to record
reasons to arrive at conclusion of satisfaction
that the charges are serious enough to
impose major penalty. (Para 13, 14, 15)

There is no statement of fact that preliminary
inquiry was conducted against the petitioner
and thereafter the satisfaction was recorded.
(Para 23)

B. Mere recommendation cannot be
made a ground in passing the order. The
competent
authority
who
has
been
empowered to pass the order would
apply its own mind - In present case, the
order was passed without application of mind
and on the dictate of the Election Commission
and recommendation of the Commissioner.
Respondent No. 1 merely relied upon the
orders of the Election Commission and
Commissioner
Commercial
Tax
and
has
proceeded to pass the impugned order. (Para
16, 19, 20)
Writ petition allowed. (E-3)

Precedent followed:

1. Dr. Arvind Kumar Ram, 2007 SCC online page
1390 (Para 6, 18)

2. U.O.I. & anr. Vs Ashok Kumar Aggarwal,
(2013) 16 SCC Page 147 (Para 7, 13)

Present
petition
challenges
order
of
suspension dated 21.05.2021, passed by
Additional Chief Secretary, Department of
State Tax.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Shri S.K. Kalia, learned
Senior Advocate assisted by Shri Sameer
Kalia and Shri C.D. Chatterji, learned
Additional Chief Standing Counsel for the
State Shri Alok Sharma.

2. By means of the present writ
petition the petitioner is challenging an
order of suspension dated 21.5.2021 passed
by the respondent no.1 with the further
prayer for issuance of writ of mandamus
commanding respondents not to give effect
the impugned order dated 21.5.2021 with
the further prayer to allow the petitioner to
work and function on the post of Joint
Commissioner (SIB), Bulandshahar and
also pay him regular salary as and when the
same became due.

3. Brief facts of the case are as under
:-

"The
petitioner
was
initially
appointed
on
the
post
of
Assistant
Commissioner
Sales
Tax
under
the
respondent no.2 on 29.9.1998 after having
been selected for the said post by the U.P.
Public Service Commission. Subsequently,
on account of his excellent services, the
petitioner was promoted on the post of