# Smt. Tara Devi v. State of U.P. & Ors. 1410 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 8 ILRA 1409
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-19
- **Case number:** Writ-A No. 2472 of 2018
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-tara-devi-v-state-of-u-p-ors-1410-indian-law-reports-allahabad-series-50541
- **Pages:** 6

## Headnote

A. Service Law - UP Recruitment of
Dependent of Government Servants Dying
in Harness Rules, 1974 - Compassionate
appointment
-
Appointment
as
the
Seasonal Peon - Worked for the period of
24 years - Effect - Claim to treat as the
regular post was rejected - Retiral benefit
have not been given on the ground that
she retired as a seasonal employee/clerk
-
Validity
challenged
-
Held,
a
compassionate appointment can only be
made
on
regular
basis.
When
the
respondents acceded to the request of the
petitioner
for
her
appointment
on
compassionate grounds, consequently it
would be deemed that the appointment
done through the appointment order
dated 05.01.1994 was made on a regular
basis despite it indicating it as a seasonal
appointment
-
High
Court
issued
mandamus to pay retiral dues treating the
petitioner as regular appointed employee.
(Para 9, 17 and 19)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

8 All. Smt. Tara Devi Vs. State of U.P. & Ors.
1409
immediacy
in
rendering
of
financial
assistance to the family of the deceased
consequent upon his untimely death, the
authorities must consider and decide such
applications for

41. As has been found in several cases,
the
applications
for
appointment
on
compassionate grounds are not attended in time
and are kept pending for years together. As a
result, the applicants in several cases have to
approach the concerned High Courts seeking a
writ of Mandamus for the consideration of their
applications. Even after such a direction is
issued, frivolous or vexatious reasons are given
for rejecting the applications. Once again, the
applicants have to challenge the order of
rejection before the High Court which leads to
pendency of litigation and passage of time,
leaving the family of the employee who dies in
harness in the lurch and in financial difficulty.
Further, for reasons best known to the
authorities and on irrelevant consideration,
applications
made
for
compassionate
appointment are rejected. After several years or
are not considered at all as in the instant case.

42. If the object and purpose of
appointment on compassionate grounds as
envisaged under the relevant policies or the
rules have to be achieved, then it is just and
necessary that such applications are considered
well in time and not in a tardy way. I have come
across cases where for nearly two decades the
controversy regarding the application made for
compassionate appointment is not resolved.
This consequently leads to the frustration of the
very
policy
of
granting
compassionate
appointment on the death of the employee
while in service. Such applications must be
considered at an earliest point of time. The
consideration must be fair, reasonable and
based
on
relevant
consideration.
The
application cannot be rejected on the basis of
frivolous and for reasons extraneous to the facts
of the case. Then and then only the object and
purpose of appointment on compassionate
grounds can be achieved.

43. In view of reasons recorded above
and in view of judgment relied upon by learned
counsel for the petitioner in the case of Malaya
Nanda Sethy (Supra), the judgment relied upon
by learned counsel for the respondent is not
attracted to the present facts and circumstances
of the case.

44. The writ petition deserves to be
allowed and is hereby allowed.

45. The impugned order dated 31.08.2004
contained as Annexure-19 is hereby quashed.

46. The respondents are directed to
consider the case of petitioner for appointment
on compassionate ground, as per his original
application made and if he is otherwise found
eligible to appoint him on the post. The
aforesaid exercise shall be completed within a
period of eight weeks from from the date of
production of a certified copy of this order.

47. However, it is observed that the
petitioner shall be entitled to all the benefits
from the date of his appointment only.

48. There shall be no order as to costs.
----------
(2023) 8 ILRA 1409
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.07.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-A No. 2472 of 2018

Smt. Tara Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
1410 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Anoop Kumar Upadhyay

Counsel for the Respondents:
C.S.C., Sri A. Misra

A. Service Law - UP Recruitment of
Dependent of Government Servants Dying
in Harness Rules, 1974 - Compassionate
appointment
-
Appointment
as
the
Seasonal Peon - Worked for the period of
24 years - Effect - Claim to treat as the
regular post was rejected - Retiral benefit
have not been given on the ground that
she retired as a seasonal employee/clerk
-
Validity
challenged
-
Held,
a
compassionate appointment can only be
made
on
regular
basis.
When
the
respondents acceded to the request of the
petitioner
for
her
appointment
on
compassionate grounds, consequently it
would be deemed that the appointment
done through the appointment order
dated 05.01.1994 was made on a regular
basis despite it indicating it as a seasonal
appointment
-
High
Court
issued
mandamus to pay retiral dues treating the
petitioner as regular appointed employee.
(Para 9, 17 and 19)
Writ petition allowed. (E-1)
List of Cases cited:
1. Ram Chandra Vs St. of U.P. & ors.; 2008(26)
LCD 669
2. Ravi Karan Singh Vs St. of U.P.; 1999 (17)
LDC 641
(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner and learned State counsel for
respondent no.1 and Shri Anag Mishra,
learned counsel for the respondent nos.2 to
5.

2. By means of instant petition, the
petitioner has prayed for following main
reliefs:

"(1) Issue a writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
27.12.2017 passed by the respondent no.2
contained as annexure no.1 to the petition.

(2) Issue a writ, order or direction
in the nature of mandamus commanding
the respondents to treat the petitioner as
regular employee since the date of
appointment and pay to him arrears of
salary and other consequential benefits to
the petitioner and also pay the regular
salary
by
treating
him
as
regular
employee."

3. At the very outset, Shri Mishra
states that this Court vide order dated
04.07.2023 had required the appearance of
Deputy Cane Commissioner, Devi Patan
Mandal Gonda as none had appeared on
behalf of the respondents when the case
was listed on the said date. He states that
his non appearance on the said date was on
account of the fact that his full name was
not indicated in the cause list and he could
not note the said case. Shri Mishra states
that henceforth he will be careful in noting
when the case is listed.

4. In pursuance to the order dated
04.07.2023, Shri R.V. Ram, Deputy Cane
Commissioner, Devi Patan Mandal, Gonda
is present.

5. The case set forth by the learned
counsel for the petitioner is that the
petitioner's husband was posted as Seasonal
Peon in the department of Sahakari Ganna
Samiti Mankapur, District Gonda i.e.
respondent no.5. He claims that the
petitioner's husband died in harness in the
year 1993 and so the petitioner staked a
claim
for
being
appointed
on
compassionate ground under the provisions
8 All. Smt. Tara Devi Vs. State of U.P. & Ors.
1411
of the U.P. Recruitment of Dependent of
Government Servants Dying in Harness
Rules, 1974 (hereinafter referred to as
'Rules, 1974'). In pursuance thereof an
appointment letter dated 05.01.1994, a
copy of which is annexure no.2 to the
petition, was issued to the petitioner
whereby the petitioner was appointed as
Seasonal Peon in a regular pay scale of
Rs.750-940. However, the appointment
letter stated that the appointment would be
on temporary basis. Subsequent thereto an
order dated 16.03.2010, a copy of which is
annexure no.3 to the petition, was issued by
the Cane Commissioner, U.P., Lucknow.
The order stated that through an order dated
26.10.1988,
the
posts
of
Seasonal
Chaprasis-Jamadars have been abolished in
the Samitis and that it had been directed
that all working Seasonal Chaprasis should
be adjusted on other posts and in case they
cannot be adjusted, then they should be
continued in the same capacity till their
retirement. It was also indicated in the said
order that as the post of Seasonal Chaprasi
had come to an end as such, the petitioner
should not have been appointed on the post
of Seasonal Chaprasi. However, as the
petitioner had been continuing for a period
of approximately 16 years it was decided
that her claim for appointment against the
post of Chaprasi be considered against her
category of SC in case a post is vacant.

6. When nothing was done in the
matter, the petitioner was constrained to
approach this Court by filing Writ Petition
No.24513 (S/S) of 2017 in Re: Smt. Tara
Devi Vs. State of U.P. and Others claiming
regularization. The writ petition was
decided vide judgment and order dated
12.10.2017, a copy of which is annexure
no.4 to the petition, whereby this Court
required the respondents to consider the
representation of the petitioner.

7. In pursuance thereof the claim of
the
petitioner
was
rejected
by
the
respondents vide order dated 27.12.2017, a
copy of which is annexure no.1 to the
petition, on the ground that despite the
order
of
Cane
Commissioner
dated
16.03.2010 there is no vacant post of
Chaprasi against her category i.e. SC.

8. Raising a challenge to the order
impugned, the contention of learned
counsel for the petitioner is that although
the petitioner has retired on attaining the
age of superannuation on 31.03.2020 yet
considering that all along she has continued
on the post of Chaprasi, she is entitled for
her retiral dues which, as pension is not
payable in the society in which the
petitioner was working, are Provident Fund
and Gratutiy.

9. In this regard, it is argued that as
admittedly the petitioner was appointed
under the provisions of 1974 Rules and
such appointment could only have been
made against the regular post, as such for
all practical purposes the working of the
petitioner is to be treated as regular
employee. Consequently she is entitled for
her entire retired dues as admissible to her
on her retirement on 31.03.2020 treating
her as a regular employee.

10. In support of his argument that
compassionate appointment can only be
made against a regular post, learned
counsel for the petitioner has placed
reliance on the Division Bench judgments
of this Court in the cases of Ram Chandra
vs.
State
of
U.P.
and
others2008(26)LCD 669 and Ravi Karan Singh
vs. State of U.P. - 1999 (17) LDC 641.

11. On the other hand, Shri Mishra,
learned counsel appearing for respondent
1412 INDIAN LAW REPORTS ALLAHABAD SERIES
nos.2 to 5 argues on the basis of the
averments
contained
in
the
counter
affidavit that admittedly the petitioner was
appointed
as
Seasonal
Chaprasi-Peon.
Upon her claim for being given regular
appointment, the Cane Commissioner has
passed the order dated 16.03.2010 whereby
the earlier order dated 26.10.1988 had been
considered which had abolished the post of
Seasonal Chaprasis. However, as the
petitioner
had
been
working
for
approximately 16 years as such it was
decided that the claim of her appointment
against a regular post of Chaprasi be
considered
against
her
category.
Subsequently it was found that against four
regular posts of Chaprasis, there were 5
persons who were working and as such,
despite the order of writ court dated
12.10.2017
for
consideration
of
regularization,
neither
a
claim
for
regularization nor her claim for regular
appointment was found tenable or feasible,
and as such the representation has been
rejected vide order dated 27.12.2017. Thus
there is no illegality in the impugned order.

12. So far as the claim of the
petitioner of her being treated as a regular
employee as per the provision of Rules,
1974, the argument of Shri Mishra is that as
the husband of the petitioner was also a
Seasonal Chaprasi as such there was no
provision in the rules of the Samiti or the
cane department for giving compassionate
appointment to the dependent of a seasonal
employee. However, considering the plight
of the petitioner that she was a widow, it
was
decided
to
appoint
her
on
compassionate grounds and as much no
illegality and infirmity has been committed
by the respondents while appointing the
petitioner on compassionate grounds on a
seasonal post. It is also contended that as
the petitioner was retired on attaining the
age of superannuation while working as
Seasonal Chaprasi as such she is not
entitled for retiral dues.

13. Having heard the arguments of
learned counsel for the parties and having
perused the records, it emerges that the
husband of the petitioner was working in
the Samiti i.e. under the respondent no.5 as
a Seasonal Peon who died in harness on
05.01.1994. The petitioner staked her claim
for appointment on compassionate grounds
under the provision of Rules, 1974. The
respondents acceded to the request of the
petitioner
and
appointed
her
on
compassionate grounds as a Seaonal Peon
in a Regular Pay Scale of Rs.750-940.
Admittedly
the
appointment
of
the
petitioner has been made under the
provision of Rules, 1974 as emerges from a
perusal of the appointment order dated
05.01.1994 by use of the words "मृतक
आश्रित के शासनाांतर्गत" i.e. appointed in
accordance
with
Recruitment
of
Dependents of Government Servants Dying
in Harness Rules, 1974. As the petitioner
was only working on Seasonal basis, she
staked her claim for being appointed on a
regular
basis
which
the
Cane
Commissioner,
vide
his
order
dated
16.07.2010,
was
of
the
view
that
considering the long service of the
petitioner of approximately 16 years, she be
considered as regular employee as Chaprasi
against her category i.e. SC Category.

14. When no orders were passed, the
petitioner was constrained to approach this
Court by staking her claim for being
regularized on the post of Chaprasi. This
Court vide order dated 12.10.2017 required
the
respondents
to
consider
the
representation of the petitioner, which has
been been rejected by them vide order
8 All. Smt. Tara Devi Vs. State of U.P. & Ors.
1413
dated 27.12.2017 on the ground that as
there was no vacant post in her category i.e.
S.C. as Chaprasi, consequently she cannot
be given a regular appointment. Subsequent
thereto, the petitioner continued to work as
a Seasonal Chaprasi and retired on
attaining the age of superannuation on
31.03.2020.

15. What appears to have escaped the
attention of the respondents while initially
appointing the petitioner as Seasonal Peon
on compassionate ground in the year 1994
is that the Rules, 1974 have been
interpreted by a Division Bench of this
Court in the case of Ravi Karan Singh
(supra) which has held as under:-

"In our opinion, an appointment
under the Dying in Harness Rules has to be
treated as a permanent appointment
otherwise if such appointment is treated to
be a temporary appointment then it will
follow that soon after the appointment the
service can be terminated and this will
nullify the very purpose of the Dying in
Harness Rules because such appointment is
intended to provide immediate relief to the
family on the sudden death of the bread
earner. We, therefore, hold that the
appointment under Dying in Harness Rule
is a permanent appointment and not a
temporary appointment, and hence the
provisions of U.P. Temporary Government
Servant (Termination of Services) Rules,
1975 will not apply to such appointments."

16. A Division Bench of this Court in
the case of Ram Chandra (supra) held as
under:-

"It is admitted case of the parties
that father of the petitioner, late Sri Ram
Dhiraj was working as Class IV employee
in
Rajkiya
Vastukala
Mahavidyalaya,
Lucknow, who expired while he was in
service. The petitioner thereafter moved an
application
for
appointment
on
compassionate ground under the provisions
of the U.P. Recruitment of Dependants of
Government Servants (Dying-in-Harness)
Rules, 1974. It is admitted case of the
parties that the petitioner was appointed by
the order dated 19.3.1983 on a Class IV
post. It is settled law that the appointments
made under the provisions of the U.P.
Recruitment of Dependants of Government
Servants (Dying-in- Harness) Rules, 1974
are
of
permanent
nature.
Since
appointment of the petitioner was of
permanent nature, the provisions of U.P.
Temporary
Government
Servants
(Termination of Service) Rules, 1975 were
not applicable. The impugned termination
order dated 10.12.1985 is legally not
sustainable."

17. From perusal of the aforesaid
judgments, it emerges that this Court has
repeatedly held that a compassionate
appointment can only be made on regular
basis. When the respondents acceded to the
request
of
the
petitioner
for
her
appointment on compassionate grounds,
consequently it would be deemed that the
appointment done through the appointment
order dated 05.01.1994 was made on a
regular basis despite it indicating it as a
seasonal
appointment.
Further
the
petitioner having continued for the period
of 24 years and she having retired on
attaining the age of superannuation on
31.03.2020, her retiral dues have not been
given on the ground that she retired as a
seasonal
employee/
clerk.
Once
the
petitioner
had
been
appointed
on
compassionate
grounds
under
the
provisions of Rules, 1974 and as per Rules,
1974 compassionate appointment can only
be made on a regular post, consequently
1414 INDIAN LAW REPORTS ALLAHABAD SERIES
her appointment and continuous service of
the petitioner should have been treated by
the respondents to be made on regular basis
keeping in view of the law laid down by
this Court in the aforesaid judgments.

18. Keeping in view of the aforesaid
discussions, the writ petition is allowed.

19. The order impugned dated
27.12.2017, a copy of which is annexure
no.1 to the petitioner, is quashed. A writ of
mandamus is issued to the respondents
directing them to consider the payment of
retiral dues of the petitioner treating her to
have been appointed on a regular post
under the provision of Rules, 1974 and also
make payment of her retiral dues in
accordance with law within a period of
three months from the date of receipt of
certified copy of this order.
----------
(2023) 8 ILRA 1414
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 2733 of 2023

Satya Prakash Sharma ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Vashishtha Tiwari

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
UP
Contributory
Provident Fund Insurance Pension Rules,
1964 - Rule 19(b) - Pension - Entitlement
of Officiating Principal to get pension -
Failure of St. in not making the officiating
post as the post on substantive basis -
Effect - Held, if the St., on its own
inaction, does not make appointment on
substantive basis to a post, a person
holding the post as officiating capacity but
post
being
substantive
in
nature
is
drawing salary also as admissible to the
said post, cannot be denied pensionary
benefits - Lakshman Veer's case relied
upon. (Para 7 and 12)
B. Interpretation of statute - Beneficial
construction - The pensionary benefit
rules have to be construed so as to ensure
that the object with which rules are made,
is achieved and the benefit reaches to the
last man in queue - D. S. Nakara's case
relied upon. (Para 10)
Writ petition allowed. (E-1)
List of Cases cited:
1. Narsingh Rai Vs Deputy Director of Education,
Varanasi & ors.; 2018 (11) ADJ 135
2. Rudra Kumar Sain Vs U.O.I.; (2000) 8 SSC 25
3. Lakshman Veer Vs St. of U.P.; 2019 (4) AllLJ
116
4. Surendra Prasad Agnihotri Vs St. of U.P.;
2010 0 Supreme (All) 196
5. D.S Nakara Vs U.O.I.; 1983 AIR 130
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Vashishtha Tiwari,
learned counsel for the petitioner and
learned Standing Counsel for the State
respondents.

2. In compliance of my last order
dated 22nd March, 2023, an affidavit of
compliance has been filed, which is taken
on record.

3. In the compliance affidavit State
Government has come with a case that in
view of the judgment in the case of Virsh
Bhan Sharma v. State of U.P. and others