# State Bank of India v. Ram Chandra

- **Citation:** (2012) 2 ILRA 992
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-08-27
- **Case number:** Writ Petition No. 1048 (S/B) of 2011
- **Bench:** Rajiv Sharma, S.V.S. Rathore
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-bank-of-india-v-ram-chandra-42325
- **Pages:** 8

## Text

992 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
treated as incidental to the Labour Court's
power under Section 33- C(2) like that of
the Executing Court's power to interpret the
decree for the purpose of its execution."

12. The Supreme Court in the case of
State Bank of India Vs. Ram Chandra
Dubey and others reported in (2001) 1
SCC 73 in Para No.8 held as follows:-

"The principles enunciated in the
decisions referred by either side can be
summed up as follows:

Whenever a workman is entitled to
receive from his employer any money or
any benefit which is capable of being
computed in terms of money and which he is
entitled to receive from his employer and is
denied of such benefit can approach Labour
Court under Section 33C(2) of the Act. The
benefit sought to be enforced under Section
33C(2) of the Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting right or benefit on one hand and the
right or benefit, which is considered just
and fair on the other hand is vital. The
former falls within jurisdiction of Labour
Court exercising powers under Section
33C(2) of the Act while the latter does not.
It cannot be spelt out from the award in the
present case that such a right or benefit has
accrued to the workman as the specific
question of the relief granted is confined
only to the reinstatement without stating
anything more as to the back wages. Hence
that relief must be deemed to have been
denied, for what is claimed but not granted
necessarily gets denied in judicial or quasijudicial proceeding. Further when a
question arises as to the adjudication of a
claim
for
back
wages
all
relevant
circumstances which will have to be gone
into, are to be considered in a judicious
manner. Therefore, the appropriate forum
wherein such question of back wages could
be decided is only in a proceeding to whom
a reference under Section 10 of the Act is
made."

13. The principle of law enunciated by
the Supreme Court in the case of Genesh
Razak (Supra) and in the case of Ram
Chandra
Dubey
(Supra)
have
been
reiterated in Para Nos.11 and 12 by the
Supreme Court in the case reported in
(2005) 8 SCC State of U.P. Vs. Brij Pal
Singh.

14. There being no such determination
by a court of competent jurisdiction with
regard to termination or dispensation of
services of the respondent no.2, the
provisions of Section 33-C (2) of the
Industrial Disputes Act were not applicable
and therefore, the award dated 10.03.1997
suffers
from
the
vice
of
excessive
jurisdiction and is accordingly, set aside.
The writ petition is allowed.

15. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.08.2012

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE S.V.S. RATHORE, J.

Writ Petition No. 1048 (S/B) of 2011

Janmejai Singh

 ...Petitioner
Versus
State of U.P. and another

 ...Opposite parties

U.P.
Recruitment
of
Dependants
of
Government Servant Dying in Harness
Rules 1974-compassionate appointmentclaimed directly on Class II post-on
ground of equality-as other dependents
2 All] Janmejai Singh V State of U.P. and another
993
of
P.C.S.
Officers
were
given
appointment on class II post-petitioner
being L.L.B. And dependents of Joint
Director in ICDS Lucknow-can not be
appointed on Class III post-held-if such
appointment given as per qualification of
dependents-other
more
qualified
candidates shall be deprived from right
of consideration-violative of Article 14apart from that two wrong will not make
right-in another word violation of article
14-can not be claimed negatively.

Held: Para 22

The appointment of a son of PCS Officer
on the post of Class II on the ground
that his qualifications justifies such
appointment, would be a negation of the
object and purpose of compassionate
appointment. If such considerations are
to be taken into account, the son of IPS
Officer should be offered the post
equivalent to IPS and that a son of Addl.
District Judge should be given a similar
post, if he/she possesses LLB degree.
The rule cannot be stretched beyond its
purpose, to violate Art.14 and 16 of the
Constitution of India.
Case law discussed:
1994 (68) FLR 1191; JT 1996 (6) S.C. 7;
(1998) 5 SCC 192; (1998) 2 SCC 412; (2007) 6
SCC 162; (2009) 7 SCC 205; (2007) 2 SCC
481; (2007) 6 SCC 162; (2009) 7 SCC 205;
(1996) 1 SCC 334; (1997) 3 SCC 321; (2000) 4
SCC 186; (2002) 4 SCC 666; AIR 2005 SC 565;
AIR 2006 SC 1142

(Delivered by Hon'ble Rajiv Sharma, J.)

1. Heard learned Counsel for the
petitioner and learned Standing Counsel.

2. Through the instant writ petition
under Article 226 of the Constitution of
India, the petitioner challenges the order
dated 28.12.2010 passed by the Principal
Secretary,
Bal
Vikas
Sewa
Evam
Pushtahar, Lucknow (opposite party No.1)
contained in Annexure No. 1 to the writ
petition,
whereby
the
petitioner's
representation for promotion was rejected.

3. According to the petitioner, his
father Sheo Pratap Singh, while working as
Joint Director in ICDS, Lucknow, died on
28.11.2004
due
to
heart
attack.
Immediately
thereafter,
his
mother
preferred an application/representation to
opposite party No.2-the Director, Bal
Vikas Sewa Evam Pushtahar, Lucknow,
requesting therein that her son i.e.
petitioner be given appointment according
to his qualification on compassionate
ground
under
the
Uttar
Pradesh
Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974
[hereinafter referred to as "1974 Rules"].
The Secretary, Government of U.P., vide
letter dated 22.3.2006 directed the opposite
party No. 2 to appoint the petitioner on
Class III post.

4. Pursuant to the letter dated
22.3.2006, opposite party No.2 has passed
an order dated 10.5.2006 for appointment
of the petitioner on Class III post and
informed the petitioner to join on the post
of Class III. On receipt of the appointment
letter
dated
10.5.2006,
petitioner
approached the Director, Bal Vikas Sewa
Evam Pustahar (opposite party No.2) and
requested him that since he is a student of
L.L.B. and very soon he is going to
complete L.L.B. Course and his father was
a PCS Officer and as such, he may be
considered for appointment on Class II
post according to his qualification but his
request was rejected by the opposite party
No.2 vide order dated 15.1.2009.

5. On receipt of the order dated
15.1.2009,
petitioner
preferred
an
application under Right to Information
Act, wherein it was requested to give
994 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
information how many PCS Officers died
since 2001 and how many dependents of
PCS
officers,
who
were
given
appointments, to which the petitioner
received information on 11.6.2009, by
which, department has informed the
petitioner that since 2001, 22 PCS officers
died and out of 22, 9 dependents of the
PCS Officers were appointed in the
different departments. On perusal of the
said information, petitioner came to know
that total 9 dependents of the PCS Officers
were
appointed
on
Class
II
post.
Thereafter, the petitioner has preferred a
fresh representation, raising the above
grievances, but no heed was paid and as
such, petitioner approached this Court by
filing writ petition No. 413 of 2010 (S/B).
A co-ordinate Bench of this Court, vide
order dated 7.4.2010, disposed of the writ
petition by granting liberty to the petitioner
to make a fresh representation, in addition
to the pending one, with detailed facts
before the authority concerned and the
authority concerned was directed to
consider and decide the same on merit.

6. In compliance of the order dated
7.4.2010, the State Government considered
the petitioner's representation and rejected
it vide order dated 28.12.2010. Feeling
aggrieved, petitioner has preferred the
instant writ petition under Article 226 of
the Constitution of India, inter alia on the
grounds that opposite party No. 1 erred in
rejecting the claim of the petitioner for
appointment on the post of Class II insofar
as the opposite party No.1 while rejecting
petitioner's claim ignored the judgment and
order dated 7.4.2010 passed by this Court,
wherein this Court directed to consider the
petitioner's claim alike similarly situated
candidates.

7. Learned Counsel for the petitioner
submits that by the impugned order dated
28.12.2010, opposite party No.1 has
rejected the claim of the petitioner on the
ground
that
when
he
was
given
appointment on Class III post, petitioner
did not raise any objection, which is totally
wrong and erroneous insofar as when the
petitioner came to know about the joining
of the other similarly situated candidate on
Class II post, he immediately approached
the department and requested for his
joining on Class II but the opposite parties
never considered the case of the petitioner.
He submits that though similarly situated
persons were given appointment on Class
II post on compassionate ground but the
petitioner has been denied appointment on
Class II post, which is in violation of
Article 14, 16 and 21 of the Constitution.

8. Refuting the submissions advanced
by
the
petitioner's
counsel,
learned
Standing
Counsel
submits
that
in
compliance of the order dated 5.7.2011
passed by this Court in the instant writ
petition, an information from different
departments were collected relating to
compassionate appointments made on
Class II posts and on perusal of the same, it
reflects
that
these
appointments
on
compassionate ground were made in the
scale of Class II and outside the purview of
Public Service Commission. He submits
that no compassionate appointment has
been made on Class II posts which are
within the purview of the Uttar Pradesh
Service Commission and as such, all such
appointments are in consonance with the
provisions of 1974 Rules. He further
submits that vide Government Order dated
27.6.2012, it has been made clear that no
compassionate appointment will be given
on Class I and Class II posts. Thus, the
petitioner's representation has rightly been
2 All] Janmejai Singh V State of U.P. and another
995
rejected by the opposite party No.1 and the
petition deserves to be dismissed.

9. Learned Standing Counsel has
relied upon the judgments of the Supreme
Court in Umesh Kumar Nagpal Vs. State
of Haryana & Ors., 1994 (68) FLR 1191;
State of Bihar & Ors. Vs. Samsuz Zoha,
JT 1996 (6) S.C. 7; Director of Education
(Secondary) & Anr. Vs. Pushpendra
Kumar & Ors., (1998) 5 SCC 192; State
of U.P. & Ors. Vs. Paras Nath, (1998) 2
SCC 412; I.G. (Karmik) & Ors. Vs.
Prahalad Mani Tripathi, (2007) 6 SCC
162, and General Manager, Uttaranchal
Jal Sansthan Vs. Laxmi Devi & Ors.,
(2009) 7 SCC 205. He submits that in all
these decisions the Supreme Court has laid
down the legal principles based on the
purpose
of
giving
compassionate
appointment and has interpreted various
rules including the Rules of 1974 regarding
constitutionality and permissibility of such
appointments. The rules of compassionate
appointments are by way of exception to
general rules and must be given strict
interpretation.

10.

In
National
Institute
of
Technology v. Niraj Kumar Singh, (2007)
2 SCC 481, the Supreme Court held :-

"14. Appointment on compassionate
ground would be illegal in absence of any
scheme providing therefor. Such scheme
must
be
commensurate
with
the
constitutional scheme of equality.

16.All public appointments must be in
consonance with Article 16 of the
Constitution of India. Exceptions carved
out
therefore
are
the
cases
where
appointments are to be given to the widow
or the dependent children of the employee
who died in harness. Such an exception is
carved out with a view to see that the
family of the deceased employee who has
died in harness does not become a
destitute. No appointment, therefore, on
compassionate ground can be granted to a
person other than those for whose benefit
the exception has been carved out. Other
family members of the deceased employee
would not derive any benefit thereunder."

11. In another case, namely, I.G.
(Karmik) v. Prahalad Mani Tripathi,
(2007) 6 SCC 162, the Apex Court held as
under :-

"7. Public employment is considered
to be a wealth. It in terms of the
constitutional scheme cannot be given on
descent. When such an exception has been
carved out by this Court, the same must be
strictly complied with. Appointment on
compassionate ground is given only for
meeting the immediate hardship which is
faced by the family by reason of the death
of the bread earner. When an appointment
is made on compassionate ground, it
should be kept confined only to the
purpose it seeks to achieve, the idea being
not to provide for endless compassion."

12. The State Government has
defended
its
decision
to
give
compassionate appointment on Class-III
post both on the interpretation of Rule 5 of
the Rules of 1974, and also on the ground
that there is no post in any cadre in Class-II
within the purview of U.P. Public Service
Commission. The petitioner has been
offered appointment in Class III post on a
vacant post. There is no such policy of the
State Government to create post of Class II
on temporary basis for compassionate
appointment based on the post held by the
deceased PCS Officer. There is no
negative content in Article 14 and 16 of the
996 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Constitution of India and thus the Court
should not issue writ of mandamus, for
perpetrating illegality in the name of
equality. Equal treatment is given amongst
equals, and if there has been any breach of
rules, the Court may not insist upon
committing same breach all over again in
offering public employment.

13. In Uttaranchal Jal Sansthan Vs.
Laxmi Devi, (2009) 7 SCC 205 the
Supreme Court held that equality cannot be
applied, when it arises out of illegality.
Art.14 carries with it positive effect.

14. In Chandigarh Administration
Vs. Jagjit Singh, (1995) 1 SCC 745, the
Supreme Court held in paragraph 8 as
follows:-

"Generally speaking, the mere fact
that the respondent-authority has passed a
particular order in the case of another
person similarly situated can never be the
ground for issuing a writ in favour of the
petitioner on the plea of discrimination.
The order in favour of the other person
might be legal and valid or it might not be.
That has to be investigated first before it
can be directed to be followed in the case
of the petitioner. If the order in favour of
the other person is found to be contrary to
law or not warranted in the facts and
circumstances of his case, it is obvious that
such illegal or unwarranted order cannot be
made the basis of issuing a writ compelling
the respondent-authority to repeat the
illegality or to pass another unwarranted
order. The extra-ordinary and discretionary
power of the High Court cannot be
exercised for such a purpose. Merely
because
the
respondent-authority
has
passed one illegal / unwarranted order, it
does not entitle the High Court to compel
the authority to repeat that illegality over
again. The illegal / unwarranted action
must be corrected, if it can be done
according to law - indeed, wherever it is
possible, the court should direct the
appropriate authority to correct such wrong
orders in accordance with law - but even if
it cannot be corrected, it is difficult to see
how it can be made a basis for its
repetition."

15. The ratio of the judgment in
Chandigarh Administration (supra) was
followed in Yadu Nandan Garg Vs. State
of Rajasthan, (1996) 1 SCC 334; State of
Haryana Vs. Ram Kumar Jain, (1997) 3
SCC 321; C.S.I.R. Vs. Dr. Ajai Kumar
Jain, (2000) 4 SCC 186; and Narpat
Singh Vs. Jaipur Development Authority,
(2002) 4 SCC 666. The principle can be
applied in a different way, by saying that
two wrongs do not make one right. The
Court should decide the cases on correct
legal principles and not by multiplying
illegality vide Anand Buttons Vs. State of
Haryana, AIR 2005 SC 565 and Kastha
Niwarak GSS Maryadit Indore Vs.
President Indore Development Authority,
AIR 2006 SC 1142.

16. It is not denied that the
petitioner's mother is receiving family
pension on the untimely and unfortunate
death of her husband and she would thus
receiving pension amount per month out of
benefits given on the services rendered by
her husband.

17.

In
order
to
decide
the
controversy, it would be apt to reproduce
Rule 5 of the Rules of 1974, which are as
under :-

"5. Recruitment of a member of the
family of the deceased. - (1) In case a
Government servant dies in harness after
2 All] Janmejai Singh V State of U.P. and another
997
the commencement of these rules and the
spouse of the deceased Government
servant is not already employed under the
Central
Government
or
a
State
Government or a Corporation owned or
controlled by the Central Government or a
State Government, one member of his
family who is not already employed under
the Central Government or a State
Government or a Corporation owned or
controlled by the Central Government or a
State Government shall, on making an
application for the purposes, be given a
suitable
employment
in
Government
service on a post except the post which is
within the purview of the Uttar Pradesh
Public Service Commission, in relaxation
of the normal recruitment rules, if such
person-

(i)fulfils the educational qualifications
prescribed for the post,

(ii)
is
otherwise
qualified
for
Government service, and

(iii)
makes
the
application
for
employment within five years from the
date of the death of the Government
servant:

Provided
that
where
the
State
Government is satisfied that the time-limit
fixed for making the application for
employment causes undue hardship in any
particular case, it may dispense with or
relax the requirement as it may consider
necessary for dealing with the case in a just
and equitable manner.

(2) As far as possible, such an
employment should be given in the same
department
in
which
the
deceased
Government servant was employed prior to
his death."

18. The Rules of 1974 were framed
by the State in terms of the proviso to
Article 309 of the Constitution of India and
provide for appointment on compassionate
grounds
in
suitable
employment
in
government service on the post except the
post, which is within the purview of U.P.
Public Service Commission, in relaxation
to normal recruitment rules. Class-II post
in the State Government are within the
purview
of
U.P.
Public
Service
Commission except those posts, which are
created on temporary basis as Officers on
Special Duty in the exigency of service.

19. In Director of Education
(Secondary) & Anr. Vs. Pushpendra
Kumar & Ors. (Supra), the Supreme Court
considered the orders passed by the High
court by which directions were given to
appoint the applicants, as dependents of the
government servant dying in harness in the
Education Department on Class-III post
provided
he
possesses
necessary
qualifications for the post. The Supreme
court held interpreting Regulations 101,
103, 104, 106, 107 and Regulation 105-A
of Chapter III of the Regulations made
under Section 16G of the U.P. Intermediate
education Act that if vacancy in nonteaching cadre for the time being does not
exist in any recognised aided institutions,
then the appointment shall be made against
the supernumerary non-teaching post of
Class-IV category and such post shall be
deemed to have been created for this
purpose and be continued till a vacancy
becomes available. It was held that object
underlying the provision for grant of
compassionate appointment is to enable
the family of the deceased employee, to
tide over sudden financial crisis resultant
due to death of bread earner, which has left
the family in penury and without any
means of livelihood. Out of humanitarian
998 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
consideration and having regard to the fact,
that unless some source of livelihood is
provided family would not be able to both
ends meets, provisions are made for giving
gainful employment to one of the
dependent of the deceased, which may be
eligible for such appointment. Such a
provision makes a departure from the
general
provision
providing
for
employment, after following particular
procedure. The rule is in nature of
exception to the general provision. An
exception cannot subsume main provision
to which its exception and thereby nullify
the main provision by taking away
completely the right conferred by the main
provision. The compassionate appointment
should not entirely interfere with the right
of the persons, who are eligible for
appointment to seek employment against
the post, which would have been available
to them but for the provisions of the
enabling
appointments
made
on
compassionate ground of the dependent of
the deceased employee.

20. The rule of compassionate
appointment has an object to give relief
against destitution. It should not be treated
as rule to give alternate employment or an
employment commensurate with the post
held by the deceased government servant.
It is not by way of giving similarly placed
life to the dependents of the deceased by
creating a supernumerary or ex-cadre post.
The object of giving compassionate
appointment should not be lost while
relaxing the rules.

21. In the same judgment in
Pushpendra Kumar (Supra) the Supreme
court held that there may be more
meritorious person than the dependent of
the deceased employee, who would be
deprived of their right of being considered
for such appointment and thus the
appointment on Class-IV post by way of
providing immediate relief should not be
misunderstood to provide an employment
with equal pay of the post, which was held
by the deceased.

22. The appointment of a son of PCS
Officer on the post of Class II on the
ground that his qualifications justifies such
appointment, would be a negation of the
object and purpose of compassionate
appointment. If such considerations are to
be taken into account, the son of IPS
Officer should be offered the post
equivalent to IPS and that a son of Addl.
District Judge should be given a similar
post, if he/she possesses LLB degree. The
rule cannot be stretched beyond its
purpose, to violate Art.14 and 16 of the
Constitution of India.

23. The illustrations given in
representation
of
the
petitioner
are
apparently illustrations of compassionate
appointment given by stretching the rules
beyond the object and purpose of enacting
the rule of compassionate appointment. We
do not have a case of any person, who was
given appointment after the year 2001 on
Class II. The circumstances in which the
rules were relaxed, are not before us nor
are we required to examine it. A
comparison will neither serve rule of
equality nor rule of equity. It is well known
principle of law that two wrongs do not
make one right and that illegal act should
not be perpetrated in the name of serving
the principle of equality. The equality is
served of adhering to the rule of law, and
not by violating rule of law.

24. The terminal benefits of father
received by the petitioner's mother, and the
family pension does not place him in such
2 All] Ramesh Chandra V Chief Inspector and another
999
a financial distress, that the Court may
consider to grant him an appointment equal
to the post and status as per his
qualification. We are not dealing with the
case of providing maintenance but a case
to provide immediate financial relief to a
person, who has lost his father in
unfortunate
circumstances.
The
compassion in such case should not
overreach the purpose for which the rule
has been enacted.

25. The petitioner has been offered
appointment on Class-III post in the pay
scale of Rs.3050-75-3950-80-4590/-. From
perusal of the records, it reflects that
petitioner has not chosen to join on the
post offered to him.

26. Before parting with the matter,
we may observe that some of the
appointments
given
by
the
State
Government on compassionate grounds, on
the post of Class II, to the dependents of
the deceased PCS officers since 2001 have
raised issues of equal treatment of the
dependents in the matter of compassionate
appointment. The appointments made
selectively in respect of some of the
dependents of the deceased PCS officers,
for the reasons, which we have not found it
proper to inquire are likely to raise issues
of equality and will continue to cause
apprehensions in the minds of similarly
situate dependents of public servants. We
thus find it appropriate and expect that the
State Government will either amend the
Rules of 1974, or to provide for guidelines
in respect of such appointments. The State
Government
may
consider
to
grant
relaxations under such guidelines. The
amendments of the rules or prescription of
guidelines will put rest to apprehensions
and speculations in such appointments and
will
avoid
litigation.
The
State
Government must demonstrate fairness
and reasonableness in such matters.

27. For the reasons aforesaid, the writ
petition is dismissed with liberty to the
petitioner to join on the Class-III post
offered to him. If due to lapse of time the
offer has been withdrawn, the State
Government will make the offer again to
the petitioner, to join.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2012

BEFORE
THE HON'BLE SATYA POOT MEHROTRA, J.
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 8647 of 1987

Ramesh Chandra

 ...Petitioner
Versus
Chief Inspector and another

 ...Respondents

Counsel for the Petitioner:
Sri K.P.Agarwal
Ghazala Bano Qadri

Counsel for the Respondents:
Sri D.P. Singh
S.C.

Constitution
of
India,
Article
226rejection order-claim for exemption of
age limit-on basis of previous workingrejected-without disclosing any reasonheld-illegal recording reason is sole of
the body of order-order in absence of
reasons-order
like
dead
body
not
sustainable rejection order quashed with
direction to pass fresh order.

Held: Para 15

We have perused the order of the
Director Factories, Uttar Pradesh dated
4.11.1986, communicated on behalf of
the State Government, rejecting the