# State of U.P. & Anr v. Vinay Yadav

- **Citation:** (2015) 1 ILRA 253
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-04
- **Case number:** Special Appeal Defective No. 71 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachudl, C.J. Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-anr-v-vinay-yadav-43290
- **Pages:** 4

## Headnote

Sri Ram Sagar Yadav
U.P.
Recruitment
&
Department
of
Government Servant Dying in Harness
Rules
1974-as
amended
by
Six
Amendment Rules 2001-2(a)-expression
'family'-includes unmarried brother alsoon
death
of
unmarried
deceased
government
employee-Learned
Single
Judge
rightly
remanded
for
fresh
consideration
of
other
requirementwarrant no interference-appeal dismissed.
Held: Para-10
The learned Single Judge has not issued
a mandamus for the appointment of the
respondent
but
has
remanded
the
proceeding back to the State after
quashing and setting aside the order
dated 10 April 2014 rejecting the claim
for compassionate appointment. The
matter has been remanded for fresh
consideration
in
the
light
of
the
observations contained in the judgment.
On remand, the State would have to
consider whether the respondent fulfills
all the other requirements of the Rules
including those which are set out in Rule
2 (c) to the effect that the deceased
should have been unmarried and that the
person
claiming
employment
should
have been dependent of the deceased.
We also clarify that the State would be
at liberty to duly assess whether the
claim
for
appointment
is
otherwise
sustainable on the basis of the Rules as
explained in the judgment of the Full
Bench of this Court in Shiva Kuma Dubey
vs. State of U.P. and others5. The law
laid down by the Full Bench recently is
on the basis of the position in law, as
explained
by
the
judgment
of
the
Supreme Court.
Case Law discussed:
W.P. No. 45645 of 2007; Spl Appl No. 356 of

## Text

1 All] State of U.P. & Anr. Vs. Vinay Yadav
253
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUDL, C.J.
THE HON'BLE SUNEET KUMAR, J.
Special Appeal Defective No. 71 of 2015
State of U.P. & Anr.
...Appellants
Versus
Vinay Yadav
...Respondent
Counsel for the Appellants:
Sri A.K.Roy, S.C.
Counsel for the Respondent:
Sri Ram Sagar Yadav
U.P.
Recruitment
&
Department
of
Government Servant Dying in Harness
Rules
1974-as
amended
by
Six
Amendment Rules 2001-2(a)-expression
'family'-includes unmarried brother alsoon
death
of
unmarried
deceased
government
employee-Learned
Single
Judge
rightly
remanded
for
fresh
consideration
of
other
requirementwarrant no interference-appeal dismissed.
Held: Para-10
The learned Single Judge has not issued
a mandamus for the appointment of the
respondent
but
has
remanded
the
proceeding back to the State after
quashing and setting aside the order
dated 10 April 2014 rejecting the claim
for compassionate appointment. The
matter has been remanded for fresh
consideration
in
the
light
of
the
observations contained in the judgment.
On remand, the State would have to
consider whether the respondent fulfills
all the other requirements of the Rules
including those which are set out in Rule
2 (c) to the effect that the deceased
should have been unmarried and that the
person
claiming
employment
should
have been dependent of the deceased.
We also clarify that the State would be
at liberty to duly assess whether the
claim
for
appointment
is
otherwise
sustainable on the basis of the Rules as
explained in the judgment of the Full
Bench of this Court in Shiva Kuma Dubey
vs. State of U.P. and others5. The law
laid down by the Full Bench recently is
on the basis of the position in law, as
explained
by
the
judgment
of
the
Supreme Court.
Case Law discussed:
W.P. No. 45645 of 2007; Spl Appl No. 356 of
2012.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The special appeal arises from a
judgement of the learned Single Judge
dated 8 July 2014.
2. The brother of the respondent was
selected
in
the
Provincial
Armed
Constabulary1 as a constable on 5 July
2006. He was appointed in the 28th
Battalion
at
PAC
Etawah.
On
8
November
2007,
the
Government
cancelled the selection process and
appointments of constables throughout the
State on the ground that there were
malpractices in the selection process. By
orders dated 11 September 2007, 18
September 2007 and 30 September 2007,
the appointments of over 18700 personnel
were cancelled. A large batch of writ
petitions
was
filed
in
this
Court
challenging the decision of the State
Government. The leading writ petition in
Pawan Kumar Singh vs. State of U.P. and
others2 was allowed by a judgment and
order dated 8 December 2008. The writ
petitions were allowed and the orders
passed by the Government canceling
selection process and appointments were
quashed. A special appeal3 filed by the
254
 INDIAN LAW REPORTS ALLAHABAD SERIES
State was dismissed on 4 March 2009.
The
State
Government
moved
the
Supreme Court in a special leave petition.
It is not in dispute that in pursuance of an
order of the Supreme Court dated 25 May
2009, the State Government had issued a
government order dated 26 May 2009 by
which all the constables were allowed to
rejoin on provisional basis. Eventually,
the special leave petition was withdrawn.
Consequently, the directions issued by
this Court attained finality.
3. The brother of the respondent met
with an accident and died on 26 February
2008. The claim of the respondent for
compassionate appointment was rejected
by an order dated 10 April 2013 on the
ground that his brother had joined service
on 2 September 2006 but the State
Government had on 8 November 2007
cancelled
all
the
recruitments
and
appointments throughout the State. On 12
September 2007, the services of the
brother of the respondent were also
terminated. Hence, it was submitted that
the brother of the respondent who had
died in the meantime on 26 February
2008 was deemed to be out of service.
Even though a notice had been sent to him
on 30 May 2009 in compliance of the
order of the Supreme Court dated 25 May
2009 and the subsequent government
order dated 26 May 2009, he had not
reported in view of the admitted position
that he had already died in an accident on
26 February 2008.
4. Before the learned Single Judge,
the submission which was urged on behalf
of the respondent was that as an
unmarried brother of the deceased and a
person who was dependent on the
deceased, the respondent fell within the
definition of the expression family under
the
Uttar
Pradesh
Recruitment
of
Dependents of Government Servants
Dying in Harness Rules 19744. On the
other hand, the submission which was
urged in defence by the State was that on
account of the death of the employee on
26 February 2008, he had never joined
service in compliance of the direction of
the Supreme Court dated 25 May 2009
and the implementing order of the State
Government dated 26 May 2009. Since he
would be deemed to be out of service, in
consequence of his death in the meantime,
the respondent would not be entitled to
seek compassionate appointment.
5. The learned Single Judge rejected
this contention noting that the orders
passed by the State canceling the entire
selection process across the State had
been set aside by this Court in a batch of
matters. After the special appeal of the
State had failed and the Government
carried the matter in a special leave
petition to the Supreme Court, the State,
in fact, complied with the direction for
allowing all such persons provisionally to
join service and eventually withdrew the
special leave petition. The learned Single
Judge held that all the government orders
as well as individual termination orders
were quashed by this Court in a batch of
matters while upholding the recruitment
which
was
made
for
over
18700
constables. Hence, it was held that the
respondent could not be denied the benefit
of compassionate appointment since the
plain consequence of the setting aside of
the orders of termination and the
cancellation of the selection process was
that all the constables who were similarly
placed, were reinstated in service.
6. The learned Judge noted that save
and except for this submission which was
1 All] State of U.P. & Anr. Vs. Vinay Yadav
255
urged in paragraph 10 of the counter, no
other
submission
had
been
raised.
Moreover, it was found that it was not
disputed that as per the definition of the
expression
"family",
an
unmarried
brother,
dependent
on
a
deceased
government servant, was entitled to
compassionate appointment. Moreover,
the learned Single Judge held that while
rejecting the claim, the State had not
taken the plea that the respondent was not
covered
by
the
definition
of
the
expression "family" in the Rules.
7. In support of the appeal, the
learned Standing Counsel has urged only
one submission. The submission is that
the definition of the expression "family"
in Rule 2 (c) was amended on 22
December 2011 so as to bring within its
purview an unmarried brother.
8. In the present case, it was
submitted that when the brother of the
respondent died on 26 February 2008, the
definition did not include an unmarried
brother. Hence, it was submitted that
when the right to apply accrued to the
respondent, he was not entitled to
compassionate appointment.
9. At the outset, we may note that
this point has neither been raised in the
counter nor was it urged before the
learned Single Judge. However, in the
interest of justice and since a pure
question of law has been raised, we
deemed it appropriate to allow the learned
Standing Counsel to address the Court on
the issue so as to bring finality to the
matter. There is a basic fallacy in the
submission of the learned Standing
Counsel. The Dying in Harness Rules
were amended by the (Sixth Amendment)
Rules of 2001 which were notified on 12
October 2001. By the amendment, the
definition of the expression "family" was
enlarged to include an unmarried brother,
unmarried sister and a widowed mother
provided (i) the deceased government
employee was unmarried; and (ii) the
heirs as described were dependent on the
deceased. There is hence an error in the
submission of State that it was for the first
time in 2011 that the Rules were amended
to bring in unmarried brother within the
purview of the expression "family". The
amendment of 2011 has further enlarged
the definition of the expression "family"
which is not relevant for the present
purpose. Since the amended definition
covered an unmarried brother right from
2001, there is no merit in the submission.
10. The learned Single Judge has not
issued a mandamus for the appointment of
the respondent but has remanded the
proceeding back to the State after
quashing and setting aside the order dated
10 April 2014 rejecting the claim for
compassionate appointment. The matter
has been remanded for fresh consideration
in the light of the observations contained
in the judgment. On remand, the State
would have to consider whether the
respondent
fulfills
all
the
other
requirements of the Rules including those
which are set out in Rule 2 (c) to the
effect that the deceased should have been
unmarried and that the person claiming
employment should have been dependent
of the deceased. We also clarify that the
State would be at liberty to duly assess
whether the claim for appointment is
otherwise sustainable on the basis of the
Rules as explained in the judgment of the
Full Bench of this Court in Shiva Kuma
Dubey vs. State of U.P. and others5. The
law laid down by the Full Bench recently
is on the basis of the position in law, as
256
 INDIAN LAW REPORTS ALLAHABAD SERIES
explained by the judgment of the Supreme
Court.
11. For these reasons and subject to
the above, we see no reason to interfere
with the order of the learned Single Judge.
The special appeal is dismissed.
12. Since in the meantime, the
respondent has instituted a contempt
application for non compliance of the
impugned order under appeal, we deem it
appropriate in the interest of justice to
extend the time for compliance by a
further period of two months from today.
13.

The
special
appeal
is,
accordingly, disposed of. There shall be
no order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE SUNEET KUMAR, J.
Special Appeal Defective No. 101 of 2015
Bankey Bihari Chauhan
...Appellant
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Sri G.C. Pant, Sri Nitin Pant
Counsel for the Respondents:
C.S.C., Sri Ajit Kumar Singh
Uttar
Pradesh
State
Transport
Corporation
Employee
(other
than
officers)
Service
Regulation
1981Regulation-39, 63-Gratuity payment to
employees of corporation-provision of
Payment of Gratuity Act 1972-Rule 4(6)-
deduction
of
amount
of
loss
from
gratuity-held-illegal without following
procedure-action of corporation ultra
virus-appeal allowed.
Held: Para-8
In any event, it is clear that even
Regulation 63 contains no such provision
of recovery from gratuity. In these
circumstances, we are of the view that
the action for recovery from gratuity was
contrary to law and in the teeth of the
express provision of the Act. The learned
Single Judge, with great respect, was not
justified in dismissing the petition on the
ground that the appellant had not
challenged the order of penalty or the
appellate order. For the purposes of the
present proceedings, it is not necessary
for the
Court to enquire into the
grievance of the appellant that he was
not served with the appellate order.
Moreover, we may clarify that the
learned counsel for the appellant has
only confined himself to the payment of
gratuity. Even if the order of penalty has
attained finality, as is urged on behalf of
the
employer,
any
recovery
or
adjustment of the amount of gratuity has
to be made by following the statutory
provisions contained in the Act. Since the
conditions set out in Section 4 (6) of the
Act for forfeiture of the gratuity have not
been fulfilled, the action of the employer
was ultra vires.
Case Law discussed:
(2007) 1 SCC 663; (2013) 12 SCC 210.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. This special appeal has arisen
from a judgment of the learned Single
Judge dated 9 December 2014 dismissing
a writ petition filed by the appellant.
2. The appellant was appointed as a
Bus Conductor in the Uttar Pradesh State
Road Transport Corporation1 on 20
March 1978. His services are governed by