# State of U.P. and others v. Smt. Munni Devi

- **Citation:** (2010) 3 ILRA 1280
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-02
- **Case number:** Special Appeal No.549 of 2007
- **Bench:** Ferdino I. Rebello, C.J. Shabihul Hasnain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-smt-munni-devi-41771
- **Pages:** 4

## Text

1280 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
conviction of a public servant, which would
enable him to occupy the same office which
he misused."

8. In our opinion, a person convicted
on charges of corruption should not be
allowed to continue in service until his
conviction is set aside by appellate court. The
High Court in appeal has not stayed the
conviction of the petitioner.

9. After close of arguments, the
petitioner wanted to withdraw the writ
petition. We decline to grant the prayer.

10. The writ petition is dismissed.

11. Let a copy of this order be given to
the standing counsel for necessary directions.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.11.2010

BEFORE
THE HON'BLE FERDINO I. REBELLO, C.J.
THE HON'BLE SHABIHUL HASNAIN, J.

Special Appeal No.549 of 2007

State of U.P. and others ...Petitioners
Versus
Smt. Munni Devi

 ...Respondent

Constitution
of
India
Art.
226Compassionate appointment-dependent
of work charge employer-not entitled to
claim benefit under Dying in harness
Rules-Hon'ble Single Judge Quashed the
G.O. Dated 29.01.2003 by which the
benefit of compassionate appointment
to
the
dependent
of
work
charge
employees
withdrawn-without
disclosing
any
reason-held-not
sustainable
in
view
of
Full
Bench
decision judgement by Single Judge seta-side

Held: Para 7

Though, it earlier had made a provision
extending certain benefits in favour of
dependants of persons working on daily
wage/muster roll basis, it also had right
to withdraw the same. It cannot be said
that merely because the State has
withdrawn the benefit which was earlier
extended, the same has resulted in any
arbitrariness or in violation of any
constitutional provision. The judgment of
the learned Single Judge, therefore,
suffers from an error of law inasmuch as
no
reason
has
been
assigned
for
quashing the Government Order dated
29.01.2003 withdrawing certain benefit
extended under Dying in Harness Rules.
Case law discussed:
[(2002) 1 UPLBEC 337], Civil Misc.Petition No.
15505 of 2005,(2009) 2 SCC (L&S) 304

(Delivered by Hon'ble F.I. Rebello, C.J.)

1. The State and its functionaries
have preferred this appeal against the
judgment and order dated 17.09.2004, by
which the learned Single Judge has
allowed the writ petition filed by the writ
petitioner-respondent (hereinafter referred
to as the ''respondent'), and directed them
to consider her case for appointment on
compassionate ground.

2. The husband of the respondent
had joined as daily wager in Public Works
Department in the year 1983. From the
year 1998, he worked on work charged
basis till his death on 2nd May, 2003.
After his death, the respondent applied for
appointment on compassionate ground on
24th
July,
2003
under
the
U.P.
Recruitment
of
Dependants
of
Government Servant (Dying in Harness)
Rules, 1974 (hereinafter referred to as the
''Dying in Harness Rules'). Her claim was
rejected on the ground that the employees
working on work charged basis are not
3 All] State of U.P. and others V. Smt. Munni Devi
1281
entitled
for
appointment
on
compassionate ground.

3. The learned Single Judge, in the
impugned
judgment,
has
noted
the
judgment of this Court in Santosh
Kumar Mishra Vs. State of U.P. & Ors.,
[ (2002) 1 UPLBEC 337], wherein the
learned Bench had taken the view that the
dependants of work charge employees are
entitled
for
appointment
on
compassionate ground under Dying in
Harness Rules. The learned Judge then
held that since the husband of the
respondent had worked for about 20 years
on temporary basis, the authorities have
got no right to adopt different standards
for the purpose of making appointment
under Dying in Harness Rules and,
accordingly, directed that the respondent
be appointed on compassionate basis
under Dying in Harness Rules. The
learned
Judge
also
quashed
the
Government Order dated 29.01.2003, by
which the State had withdrawn certain
benefits extended to the dependants of
daily wagers/work charge employees for
appointment on compassionate ground
under Dying in Harness Rules, without
assigning any reason.

4. In the appeal preferred by the
State, it was pointed out that a person
working on work charged basis is not
holder of a civil post. Though, earlier the
Government
had
granted
certain
relaxation in strict requirement of Dying
in Harness Rules to cover even the cases
of
muster
roll
and
work
charged
employees, the same was withdrawn by
Government Order dated 29.01.2003. It
was further pointed out that the question
of recruitment and appointment is a policy
decision, which has to be decided by the
State Government and its right to create
post and recruit people emanates from the
statute or statutory rules and/or rules
framed under the proviso to Article 309 of
the Constitution of India. It has also been
submitted on behalf of the State that
reliance placed by the learned Judge on
the judgment in Santosh Kumar Mishra
(supra) was misplaced.

5. At the hearing of this appeal,
though notice was given to the learned
counsel for the respondent, but none
appeared on her behalf.

6. In the first instance, we may point
out that a Full Bench of this Court in
Civil Misc. Writ Petition No. 15505 of
2005, Pawan Kumar Yadav Vs. State of
U.P. & Ors., decided on 22.09.2010, has
overruled the judgment, amongst others,
in Santosh Kumar Mishra (supra). Once
that be the case, the impugned judgment
of the learned Single Judge cannot be
sustained and is liable to be set aside on
that ground alone. We may quote
paragraph 26 of the said judgment, which
reads as under:-

"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 posed as follows:-

"1. A daily wager and work charge
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 U.P. Recruitment of
Dependants
of
Government
Servant
(Dying in Harness) Rules, 1974, and thus
1282 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
his dependants on his death in harness are
not entitled to compassionate appointment
under these Rules."

7. The larger question, however, is
whether the decision of the learned Single
Judge to quash the circular withdrawing
benefit of Dying in Harness Rules
extended to the dependants of daily
wage/muster roll employees is supported
by law? As noted earlier, no reasons have
been given by the learned Single Judge to
quash the Government Order dated
29.01.2003 withdrawing the benefit of
Dying in Harness Rules to the dependants
of daily wage/muster roll employees. The
said Government Order was issued in
exercise of State's power in the absence of
any rule made under Article 309 of the
Constitution of India. Though, the ground
to challenge may not be similar to what
are available to challenge to a subordinate
legislation,
nonetheless
the
test
of
administrative review of an administrative
action will have to be met. The learned
Judge has not given any reason as to why
the action of the State is arbitrary and
violative of Article 14 of the Constitution
of India. It may also be noted that the
Supreme Court in the case of General
Manager, Uttaranchal Jal Sansthan Vs.
Laxmi Devi & Ors., (2009) 2 SCC
(L&S) 304 has held that the daily rated
and work charge employees are not
holding any civil post under the State.
Once that be the case, the question of
extending any largesse by the State to
persons appointed on daily wage/work
charge basis would not arise as they are
not holders of civil post. The State, in its
sovereign power to mitigate hardship of
family members of a deceased holding
civil post has made provision for
appointment on compassionate basis. It
would thus be impermissible for the State
to create any right in favour of dependants
of
persons
employed
on
daily
wage/muster roll/work charged basis to be
considered
for
appointment
on
compassionate basis merely because they
have been engaged by the State on daily
wage/muster roll/work charge basis. Even
assuming that the State may take a
decision to provide certain benefits to
daily rated and work charge employees,
that surely cannot be on regular basis as
that would amount to giving a benefit
which even the deceased was not entitled
to. Secondly, it is for the State to decide
whether to extend or not to extend its
largesse in favour of persons working on
work charge and daily wage basis.
Though, it earlier had made a provision
extending certain benefits in favour of
dependants of persons working on daily
wage/muster roll basis, it also had right to
withdraw the same. It cannot be said that
merely because the State has withdrawn
the benefit which was earlier extended,
the same has resulted in any arbitrariness
or in violation of any constitutional
provision. The judgment of the learned
Single Judge, therefore, suffers from an
error of law inasmuch as no reason has
been
assigned
for
quashing
the
Government Order dated 29.01.2003
withdrawing certain benefit extended
under Dying in Harness Rules.

8.

In
the
instant
case,
no
appointment was given to the respondent
and, hence, the question of considering
protect her appointment would not arise.

9. In the light of above, the appeal
deserves
to
be
allowed
and
is,
accordingly, allowed. The judgment and
order of the learned Single Judge dated
17.09.2004 passed in Writ Petition No.
5289 (S/S) of 2004 is set aside.
3 All] State of U.P. and others V. Chandrika Prasad
1283

10. In the circumstances of the case,
there shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.11.2010

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE RITU RAJ AWASTHI, J

Special Appeal No. 207 of 2007

State of U.P. and others ...Petitioners
Versus
Chandrika Prasad
 ...Respondent

Constitution of India-Art.-226-Parity of
Pay Scale-petition working as laboratory
Assistant in Govt. Homeopathic Collegeclaimed the benefit of G.O. 19.09.1979denial by the authorities even of the
direction given by the Director-learned
Single judge allow the petition with
direction to given same benefit-as being
given to Mr. 'A' and 'B' similarly situated
employees-highly time barred appealCourt
expressed
its
great
concern
regarding
practice
of
filing
Special
Appeal without considering the bonafide
merit of cases0poor Respondent died
without getting fruit of judgment-such
practice
not
appreciated-appeal
dismissed with cost of Rs.10000.

Held: Para 18

The State Government ought to have
been careful while filing the special
appeal as we notice that the special
appeals
are
filed
without
even
considering as to whether appeal at all
would be successful or not and whether
there is any ground for appeal against
the order passed by the learned Single
Judge. What is happening is that almost
against every order, which is passed by
the
learned
Single
Judge,
may
be
interlocutory or final, a challenge is
made in the special appeal, and many a
time at a belated stage namely, when
contempt petitions are filed for noncompliance of the order, usually at the
sweet will or whims of the department
concerned. The forum of special appeal is
not meant for such persons including the
State Government, who does not take
the orders passed by the learned Single
Judge in the correct perspective and
avoid implementation of these orders,
under the pretext of filing the special
appeals.

(Delivered by Hon'ble Pradeep Kant, J.)

1. Heard learned counsel for the
appellants Sri A.K. Bhatnagar. None
appeared for the respondent nor there is
any request to adjourn or pass over the
case.

2. This special appeal has been filed
with delay of more than eight months and
twenty six days. It has been noticed that
the
affidavit
filed
along
with
the
application for condonation of delay not
only contains vague and bald explanation,
but also incorrect dates. Time was granted
to the State to file better affidavit, but the
so called affidavit does not explain
anything for not filing the special appeal
within time.

3. However, since the matter relates
to the financial burden upon the State
Government, we have considered the
special appeal on merits.

4. The facts of the case are that the
respondent was appointed on 4.12.1958,
as Laboratory Assistant in the pay scale of
Rs.
45-100.
Later
on
the
State
Government took over the National
Homoeopathic Medical College and the
pay of the respondent was fixed in the pay
scale of Rs. 100-160 from January, 1972,
which was later on revised in the pay
scale of Rs. 200-320.