# State of U.P. & Ors v. Smt. Pushpa Devi - **Citation:** (2014) 2 ILRA 794 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2014-07-17 - **Case number:** Special Appeal No. 621 of 2014 - **Bench:** Vineet Saran, Mrs. Vijay Lakshmi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-smt-pushpa-devi-42980 - **Pages:** 3 ## Headnote Rules, 1974- Compassionate appointment on class 4th post given-subsequentlyrevoked and recovery of salary on ground-as her husband was work charge employee-can not given regular appointment-held-Single Judge rightly quashed full Bench will not came in way already appointed-Appeal dismissed. Held: Para-6 Any appointment made under the Dying in Harness Rules can only be on a permanent post and not on temporary or work charge post. That being the position, the option exercised by the State in down-grading the appointment of the petitioner from that of a permanent class IV employee to a work charge employee and also a direction for recovery of the excess amount paid to the writ-petitioner cannot be justified in law. Case Law discussed: (2010) 4 UPLBEC 2633 ## Text 794 INDIAN LAW REPORTS ALLAHABAD SERIES ".............However, the first proviso to the said provision permits the authority to accept the resignation even prior to the date of expiry of the notice, i.e. two months. In the case in hand, the resignation has been accepted by the Inspector General of Police, Research, Policy Planning, Rules and Manuals, U.P., Lucknow under whose establishment the appellant was working as Constable before expiry of two months..............." 6. It is thus clear that the authority is empowered to accept a resignation even prior to the expiry of the period of two months. We therefore in addition to the reasons given by the learned Single Judge uphold the judgment for the conclusions drawn hereinabove. 7. There is no merit in this appeal and is hereby dismissed. -------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 17.07.2014 BEFORE THE HON'BLE VINEET SARAN, J. THE HON'BLE MRS. VIJAY LAKSHMI, J. Special Appeal No. 621 of 2014 State of U.P. & Ors. ..Appellants Versus Smt. Pushpa Devi ... Respondent Counsel for the Appellants: Sri A.K. Roy, S.C. Counsel for the Respondents: Sri K.K. Tripathi, Sri Manish Pandey Uttar Pradesh Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974- Compassionate appointment on class 4th post given-subsequentlyrevoked and recovery of salary on ground-as her husband was work charge employee-can not given regular appointment-held-Single Judge rightly quashed full Bench will not came in way already appointed-Appeal dismissed. Held: Para-6 Any appointment made under the Dying in Harness Rules can only be on a permanent post and not on temporary or work charge post. That being the position, the option exercised by the State in down-grading the appointment of the petitioner from that of a permanent class IV employee to a work charge employee and also a direction for recovery of the excess amount paid to the writ-petitioner cannot be justified in law. Case Law discussed: (2010) 4 UPLBEC 2633 (Delivered by Hon'ble Vineet Saran, J.) 1. In brief the facts of this case are that the husband of the sole respondentwrit petitioner Smt. Pushpa Devi was an employee of the Public Works Department who died in harness on 30.6.1991. The respondent-writ petitioner applied for appointment on compassionate ground under The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred as the "Dying in Harness Rules"). On her application, she was given appointment on 24.4.1993 as a permanent class IV employee. By order dated 18.2.2005 passed by the Executive Engineer, Public Works Department, the appointment of the respondent-writ petitioner was downgraded from that of a permanent employee to a work charge employee on the ground that her husband was a work charge employee, and not a permanent employee. Further, recovery of the difference of salary from the date of initial appointment i.e. 24.4.1993 till the 2 All] State of U.P. & Ors. Vs. Smt. Pushpa Devi 795 date of passing of the order i.e. 18.2.2005 was also directed. Challenging the same, the respondent-writ petitioner filed Civil Misc. Writ Petition No. 12190 of 2005 which was allowed by a learned Single Judge vide his order dated 10.8.2011. Challenging the same, this special appeal has been filed by the State. 2. We have heard Sri C.B.Yadav, learned Additional Advocate General appearing along with Sri A.K.Roy, learned Standing Counsel, learned counsel appearing for the appellants and Sri Manish Pandey, learned counsel holding brief of Sri K.K.Tripathi, learned counsel for the respondent-writ petitioner and have perused the record. 3. The submission of the learned Additional Advocate General is primarily that since the husband of the writpetitioner was a work charge employee, the writ-petitioner would not have been entitled to the benefit of Dying in Harness Rules but on misrepresentation of the writ-petitioner that her husband was a permanent employee of the Public Works Department, the appointment was wrongly given to her and on coming to know of the correct facts regarding her misrepresentation at the time of seeking appointment, her appointment as a permanent employee has been downgraded to that of a work charge employee, on which position the husband of the writpetitioner was working. 4. Learned counsel for the appellants has relied on the Full Bench decision of this Court in the case of Pawan Kumar Yadav vs. State of U.P. (2010) 4 UPLBEC 2633 in support of his contention that a work charge employee would not be entitled to the benefit of the Dying in Harness Rules. There is no dispute about such proposition and we accept the said submission of the learned counsel for the appellants. 5. The contention of the learned counsel for the appellants in so far as it relates to the grant of appointment to a dependent of a work charge employee under the Dying in Harness Rules is perfectly justified. A work charge employee, who is not a permanent employee, cannot be given the benefit of the Dying in Harness Rules. However, as far as the present case is concerned, the writ-petitioner had been granted appointment under the Dying in Harness Rules way back on 24.4.1993 and it is presumed that the said appointment was given after verification of the documents which had been filed by the writpetitioner. After more than a decade if it had come to the light of the appellants that the appointment was obtained by the writ-petitioner on misrepresentation or fraud i.e. by wrongly showing her husband to be a permanent employee of the department instead of correctly placing his position as that of a work charge employee, the option which could have been available to the appellants would be that of cancellation of the appointment and not to down-grade the same from that of a permanent employee to a work charge employee. We say so because appointment under the Dying in Harness Rules can only be given to the dependent of a permanent employee and not to a dependent of a work charge employee or temporary employee. Once the appointment had been given, it is presumed that the writ-petitioner had fulfilled all the conditions of grant of compassionate appointment under the Dying in Harness Rules. Once the 796 INDIAN LAW REPORTS ALLAHABAD SERIES authorities have given such appointment to the writ-petitioner, the same cannot be downgraded to that of a work charge or temporary employee on the ground that the initial appointment was incorrectly provided. If the writ-petitioner was not entitled to the appointment under the Dying in Harness Rules because of her husband being a work charge employee, the option available to the State was not to place her as a work charge employee as there is no provision in law for appointment as a work charge employee under the Dying in Harness Rules. Any appointment made under the Dying in Harness Rules can only be on a permanent post and not on temporary or work charge post. That being the position, the option exercised by the State in down-grading the appointment of the petitioner from that of a permanent class IV employee to a work charge employee and also a direction for recovery of the excess amount paid to the writ-petitioner cannot be justified in law. 6. As such, this appeal stands dismissed. No order as to cost. -------- APPELLATE JURISDICTION CIVIL SIDE DATED: LUCKNOW 21.07.2014 BEFORE THE HON'BLE DEVI PRASAD SINGH, J. HON'BLE ARVIND KUMAR TRIPATHI (II), J. Special Appeal No. 767 of 2012 District Judge Hardoi 6215(S/S) 2009 ...Appellant Versus Saurabh Kumar ...Respondent Counsel for the Petitioner: Sri Manish Kumar Counsel for the Respondents: Sri M.S. Rathore U.P. Recruitment of Dependents of Government Servant (Dying in Harness) Rules 1974-Rule-5 readwith evidence Act, Section 107, 108-Compassionate appointmentclaim on based on presumptions of deathdecree by Civil Court became final-father of petitioner /respondent class IV employeeon election duty in the year 1996-not turned up-declaration made by Civil Court on 31.05.2008 got finally-Single Judge rightly directed for compassionate appointment-within two month preferablyappeal dismissed. Held: Para-35 For the reasons discussed hereinabove, the presumption drawn by the Hon'ble Single Judge with regard to death of Om Prakash, seems to be not incorrect. Rather, it is based on sound principles of law. Accordingly, the impugned judgment and order passed by the Hon'ble Single Judge does not seem to suffer from any infirmity or illegality. Case Law discussed: (1951) 2 ALL.E.R. 587; (1881) 17 CHD 746; AIR 1953 SC 244; AIR 1955 SC 661; AIR 1959 SC 352; AIR 1966 SC 719; AIR 1975 SC 164; AIR 1973 SC 1056; AIR 1978 SC 1099; (1985) 2 SCC 321; (1995) 1 SCC 537; (1997) 1 SCC 650; (1999) 6 SCC 275; (2000) 2 SCC 699; JT (2003) 9 SC 477; (2004) 6 SCC 59; (2005) 3 SCC 161; (2008) 5 SCC 257; [(1998) 2 UPLBEC 1'1'83]; 2011(4) ALJ 234. (Delivered by Hon'ble Devi Prasad Singh, J.) 1. Heard Sri Manish Kumar, learned counsel for the appellant and Sri Krishna Kumar Singh, holding brief of Sri M.S. Rathore Advocate. 2. Late Om Prakash, father of the respondent, while working as Class-III employee in Civil Court district Hardoi, was assigned duty in Election of the year 1996. It appears that late Om Prakash had gone to attend Election duty on 3.10.1996 but he did not turn up. Thus, he is missing since 1996.