# Sumit Kumar Verma v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 865
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-15
- **Case number:** Writ-A No. 755 of 2022
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sumit-kumar-verma-v-state-of-u-p-ors-48162
- **Pages:** 6

## Headnote

A. Service Law - The U.P. Recruitment of
Dependants
of
Government
Servants
Dying in Harness Rules, 1974-Challenge
to-appointment-petitioner had obtained
appointment illegally on compassionate
ground in KGMU, Lucknow after death of
his father-the petitioner mother was
employed in the University itself as female
sick
attendant-Petitioner
deliberately
concealed this fact in his application form-
866 INDIAN LAW REPORTS ALLAHABAD SERIES
Petitioner suppressed the material fact
and played fraud for securing public
employment
and
therefore,
his
long
continuation (15 years) would not be of
any help to him to continue to hold his
post inasmuch as his appointment was
void ab initio-In service law there is no
place
for
the
concepts
of
adverse
possession or holding over.(Para 1 to 17)

The writ petition is dismissed. (E-6)
List of Cases cited:

## Text

2 All. Sumit Kumar Verma Vs. State of U.P. & Ors.
865
authority shall thereupon cause to be served
upon every such tenure holder a notice
along with copy of the said statement for
his reply if any. Thereafter, the prescribed
authority is required to adjudicate the
notice for declaring the surplus area as
contained in the statement of the notice.

16. Thus, from the reading of Sections
9 and 10 of the Act, 1960, it is evident that
there is duty cast upon the tenure holder to
give correct statement of his land holding
and excess area in the prescribed form after
publication of the notice in the Official
Gazette by the prescribed authority after
enforcement of the Act. In case the tenure
holder fails to declare or submits incorrect
statement, then only proceedings under
Section 10(2) of the Act, 1960 would be
initiated against him.

17. In the present case, the first notice
was issued against the father of the
petitioner, who was no more. It is always
open to the competent authority to correct
the mistake as the notice could not have
been issued against a dead person and that
was precise objection of the petitioner in
his objection to the first notice.

18. Considering the provisions of
Section 21 of the General Clauses Act, I do
not find that the prescribed authority has
committed any error in issuing second
notice. However, it would not be prudent to
institute two separate cases inasmuch as the
notices have been issued in respect of the
same land holding. Anyway, the petitioner
is not prejudiced by the second notice, if
both the notices are clubbed together and a
comprehensive objection is filed by the
petitioner and, thereafter, the prescribed
authority
decides
the
objection
in
accordance with law after giving due
opportunity to the petitioner.

19. In view thereof, let both notices
dated 24.11.1987 and 4.1.1989 be clubbed
together and the petitioner be given one
month time to file comprehensive objection
in respect of both the notices and the case
be treated as one in respect of both the
notices.

20. Let prescribed authority decide
the case within a period of six months in
accordance with law after giving due
opportunity for leading evidence by the
petitioner and by the State authorities.

21. With the aforesaid observation
and direction, the present writ petition
stands disposed of.
----------
(2022)02ILR A865
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.02.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ-A No. 755 of 2022

Sumit Kumar Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ashish Kumar Pathak

Counsel for the Respondents:
C.S.C., Shubham Tripathi

A. Service Law - The U.P. Recruitment of
Dependants
of
Government
Servants
Dying in Harness Rules, 1974-Challenge
to-appointment-petitioner had obtained
appointment illegally on compassionate
ground in KGMU, Lucknow after death of
his father-the petitioner mother was
employed in the University itself as female
sick
attendant-Petitioner
deliberately
concealed this fact in his application form-
866 INDIAN LAW REPORTS ALLAHABAD SERIES
Petitioner suppressed the material fact
and played fraud for securing public
employment
and
therefore,
his
long
continuation (15 years) would not be of
any help to him to continue to hold his
post inasmuch as his appointment was
void ab initio-In service law there is no
place
for
the
concepts
of
adverse
possession or holding over.(Para 1 to 17)

The writ petition is dismissed. (E-6)
List of Cases cited:

1. Shesh Mani Shukla Vs Distt. Insp. of Schools,
Deoria & ors. (2009) 15 SCC 436

2. Chairman & MD, FCI & ors. Vs Jagdish
Balaram Bahira & ors. (2017) 8 SCC 670

3. M.S. Patil (Dr.) Vs Gulbarga University & ors.
(2010) 10 SCC 63

4. Md Zamil Ahmed Vs St. of Bih. & ors. (2016)
12 SCC 342

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The petitioner, who obtained
employment on Class-IV post in King
George's Medical University, Lucknow (for
short "the University") under the provisions of
The U.P. Recruitment of Dependants of
Government Servants Dying in Harness Rules,
1974 (for short "the Rules, 1974) after death of
his father on 13.11.2007, who was working on
the post of fireman in Construction Division of
the University, has filed this writ petition,
impugning the order dated 19.06.2021 passed
by the Registrar of the University, terminating
his services with immediate effect and the
order dated 13.12.2021 passed by the ViceChancellor of the University, dismissing
appeal of the petitioner filed against the order
of termination.

2. A complaint was made against one
Mr. Anand Kumar Mishra, Head Assistant,
that he had obtained appointment illegally,
after concealing material fact and by
misrepresentation; Mr. Anand Kumar Mishra
was issued charge-sheet as required under
rule-5
of
The
U.P.
Recruitment
of
Dependants of Government Servants (Dying
in Harness) (5th Amendment) Rules, 1999;
Mr. Anand Kumar Mishra, in his reply to the
charge-sheet, had mentioned that like him,
other
employees
were
also
appointed
illegally.

3. In view of the aforesaid allegation,
the
University
decided
to
examine
appointment made on compassionate ground
after
2002
and
Prof.
A.A.
Mehndi,
Biochemistry Department, was appointed as
inquiry officer. In the inquiry conducted by
Mr. Mehndi it was found that at the time of
appointment
of
the
petitioner
on
compassionate ground under the Rules, 1999,
the petitioner's mother Smt. Kiran was
employed as female sick attendant in
Pediatric Department of the University. After
receiving this report, the petitioner was issued
charge-sheet on 05.10.2020 having been
approved by the appointing authority

4. Mr. Ram Chandra, Administrative
Officer, was nominated as inquiry officer.
Thereafter, vide order dated 03.10.2020,
Dr. Mhod Kalim Ahmad, Deputy Registrar
was nominated as inquiry officer.

5. The petitioner filed his reply to the
charge-sheet and, was given opportunity of
hearing and the inquiry officer submitted
his report on 04.03.2021. The petitioner
was issued show-cause-notice along with
inquiry report and, after considering his
reply to the show-cause-notice, impugned
order has been passed.

6. The petitioner admitted that he was
appointed on compassionate ground after
2 All. Sumit Kumar Verma Vs. State of U.P. & Ors.
867
death of his father and, he did not give
details of employment of his parents in the
form submitted by him. The petitioner has
also admitted that at the time of his
appointment, his mother was working as
female sick attendant in the Pediatric
Department of the University. Along with
the writ petition, the form submitted by the
petitioner, has also been annexed as
Annexure-11. In column-11, while giving
details of the dependents of his deceased
father, he has mentioned name of his
mother Smt. Kiran, aged about 40 years,
but he did not give details of occupation
nor monthly income of his mother. The
petitioner gave details of his two brothers,
Amit and Manish without giving details of
their occupation.

7. Under the Rules, 1999, which came
into force, the appointment under dying in
harness can be made only if wife or husband,
as the case may be, is not employed in any
Central or State Government or in any
corporation/organization owned by the Central
or State Government and, no member of the
family is employed in Central or State
Government
or
corporation/organization
owned by Central or State Government. Thus,
there is a specific bar for giving appointment
under the Rules, 1999, if wife or husband or
any family member is employed in the Central
or
the
State
Government
or
in
the
corporation/organization owned/controlled by
the Central/State Government. In the present
case, the petitioner's mother was employed in
the University itself as female sick attendant in
Pediatric Department and, the petitioner
deliberately concealed this fact in his
application form and, thus, obtained the
employment against rule-5 of the Rules, 1999.

8. Mrs. Bulbul Godiyal, learned
Senior Advocate, assisted by Dr. Ashish
Kumar Pathak, Advocate, representing the
petitioner, has submitted that the petitioner
has been working for 15 years from the
date of his appointment. The petitioner's
mother gave affidavit in favour of the
petitioner. It has been further submitted that
the petitioner did not conceal any fact and
the Construction Division of the University
itself recommended for giving appointment
to the petitioner under the Dying in Harness
Rules.

9. The recommendation of the
Construction Division has been placed on
record. However, in the recommendation of
the Construction Division nowhere it is
mentioned that the petitioner's mother is
employed in the University inasmuch as
neither in the affidavit nor in the form
submitted by the petitioner, information
regarding the employment of mother of the
petitioner
was
given.
If
the
recommendation had been made on the
basis of incorrect and false facts given by
the petitioner or recommendation was
against law, employment obtained on the
basis of the said recommendation would
not come in the way of University for
initiating disciplinary action against the
petitioner, if he had secured appointment
on the basis of misleading and incorrect
information/facts given by him.

10. On the other hand, Mr. Shubham
Tripathi,
learned
counsel
for
the
respondents-University, has submitted that
the petitioner's appointment on Class-IV
post was against rule-5 of the Rules, 1999;
the petitioner had obtained his appointment
by giving misleading and incorrect facts
and, concealing material fact regarding
employment of his mother in the University
itself. It has been further submitted that the
petitioner's appointment was void ab initio
and, thus, even if the petitioner has worked
for a long time, the petitioner is not entitled
868 INDIAN LAW REPORTS ALLAHABAD SERIES
for any relief on the ground of sympathy
and sentiments inasmuch as he has no legal
right to continue in service inasmuch as he
had no any legal right to get appointed at
the first place and, he secured his
appointment
by
playing
fraud.
The
petitioner had secured appointment by
giving false and incorrect information and
by misleading the University.

11. The facts are not in dispute
inasmuch as when father of the petitioner
died on 13.11.2017, he was working on the
post of Fireman, his wife, the mother of the
petitioner, was employed as sick attendant
in
the
Pediatric
Department
of
the
University. The petitioner did not give
information regarding the employment of
his mother in the application submitted by
him, seeking employment under the Dying
in Harness Rules after death of his father. If
the petitioner would have disclosed true
and
correct
information
regarding
employment of his mother, he could not
have
secured
the
employment.
The
petitioner did not have any legal right of his
appointment on compassionate ground
under
the
Dying
in
Harness
Rules
inasmuch as rule-5 of the Rules, 1999 puts
a specific bar for appointing a person on
compassionate ground, if any family
member is employed in Central/State
Government or in corporation/organization
owned by the Central/State Government.
Thus, the appointment, obtained by the
petitioner, was void ab initio. The Supreme
Court in (2009) 15 SCC 436 (Shesh Mani
Shukla Vs. District Inspector of Schools,
Deoria and others) in paragraph-19 has
held as under:-

"19. It is true that the appellant has
worked for a long time. His appointment,
however, being in contravention of the
statutory provision was illegal, and, thus,
void ab initio. If his appointment has not been
granted approval by the statutory authority,
no exception can be taken only because the
appellant had worked for a long time. The
same by itself, in our opinion, cannot form
the basis for obtaining a writ of or in the
nature of mandamus; as it is well known that
for the said purpose, the writ petitioner must
establish a legal right in himself and a
corresponding legal duty in the State. (See
Food Corpn. of India v. Ashis Kumar
Ganguly [(2009) 7 SCC 734 : (2009) 2 SCC
(L&S) 413 : (2009) 8 Scale 218] .) Sympathy
or sentiments alone, it is well settled, cannot
form the basis for issuing a writ of or in the
nature of mandamus. (See State of M.P. v.
Sanjay Kumar Pathak)."

12. The claim of the petitioner to be
appointed on compassionate ground has been
found untenable inasmuch his mother was
employed when he sought appointment on
compassionate ground after death of his
father and, he gave false and incorrect
information regarding unemployment of his
mother. It would not be correct to say that the
petitioner did not have any dishonest
intention for securing the employment as
contended by the learned Senior Advocate,
appearing on behalf of the petitioner. Service,
under the Union and the States, or for that
matter under the instrumentality of the State,
subserves a public purpose. These services
are instruments of governance. The State,
while offering public employment, has to
adhere to the mandate of Articles 14 and 16
of the Constitution and, to ensure equal
opportunity to the people. Selection of an
ineligible person by the State or its
instrumentality would be detrimental and
deleterious to good governance.

13. The Supreme Court, while dealing
with a case of employment having been
secured on the basis of false caste
2 All. Sumit Kumar Verma Vs. State of U.P. & Ors.
869
certificate
in
(2017)
8
SCC
670
(Chairman and Managing Director,
Food Corporation of India and others
Vs. Jagdish Balaram Bahira and others)
in paragraph-56 has held as under:-

"56. Service under the Union and the
States, or for that matter under the
instrumentalities of the State subserves a
public
purpose.
These
services
are
instruments of governance. Where the State
embarks upon public employment, it is
under the mandate of Articles 14 and 16 to
follow the principle of equal opportunity.
Affirmative action in our Constitution is
part of the quest for substantive equality.
Available resources and the opportunities
provided in the form of public employment
are in contemporary times short of
demands and needs. Hence, the procedure
for selection, and the prescription of
eligibility criteria has a significant public
element in enabling the State to make a
choice amongst competing claims. The
selection
of
ineligible
persons
is
a
manifestation of a systemic failure and has
a deleterious effect on good governance.
Firstly, selection of a person who is not
eligible allows someone who is ineligible
to gain access to scarce public resources.
Secondly, the rights of eligible persons are
violated since a person who is not eligible
for the post is selected. Thirdly, an
illegality is perpetrated by bestowing
benefits upon an imposter undeservingly.
These effects upon good governance find a
similar echo when a person who does not
belong to a reserved category passes of as a
member of that category and obtains
admission to an educational institution.
Those for whom the Constitution has made
special provisions are as a result ousted
when an imposter who does not belong to a
reserved category is selected. The fraud on
the Constitution precisely lies in this. Such
a consequence must be avoided and
stringent steps be taken by the Court to
ensure that unjust claims of imposters are
not protected in the exercise of the
jurisdiction under Article 142. The nation
cannot live on a lie. Courts play a vital
institutional role in preserving the rule of
law. The judicial process should not be
allowed to be utilised to protect the
unscrupulous and to preserve the benefits
which have accrued to an imposter on the
specious
plea
of
equity.
Once
the
legislature has stepped in, by enacting
Maharashtra Act 23 of 2001, the power
under Article 142 should not be exercised
to defeat legislative prescription. The
Constitution Bench in Milind [State of
Maharashtra v. Milind, (2001) 1 SCC 4 :
2001 SCC (L&S) 117] spoke on 28-112000. The State law has been enforced
from 18-10-2001. Judicial directions must
be consistent with law. Several decisions of
two-Judge Benches noticed earlier, failed
to take note of Maharashtra Act 23 of 2001.
The directions which were issued under
Article142
were
on
the
erroneous
inarticulate premise that the area was
unregulated by statute. Shalini [Shalini v.
New English High School Assn., (2013) 16
SCC 526 : (2014) 3 SCC (L&S) 265] noted
the statute but misconstrued it."

14. If a person obtains appointment
illegally, against the statutory prescription,
his long continuation in service (in the
present case 15 years) would not justify this
Court to uphold his appointment. The
Supreme Court in (2010) 10 SCC 63 (M.S.
Patil (Dr.) Vs. Gulbarga University and
others), where a person continued on the
post of Reader (17 years), has held that in
service law there is no place for concepts of
adverse
possession
or
holding
over.
Paragraphs-16 and 17 of the said judgment
read as under:-
870 INDIAN LAW REPORTS ALLAHABAD SERIES

"16. But at this stage once again a strong
appeal is made to let the appellant continue on
the post where he has already worked for over
17 years. Mr Patil, learned Senior Counsel,
appearing for the appellant, submitted that
throwing him out after more than 17 years
would be very hard and unfair to him since now
he cannot even go back to the college where he
worked as Lecturer and from where he had
resigned to join to this post.

17. We are unimpressed. In service law
there is no place for the concepts of adverse
possession or holding over. Helped by some
University authorities and the gratuitous
circumstances of the interim orders passed by
the Court and the delay in final disposal of the
matter, the appellant has been occupying the
post, for all these years that lawfully belonged
to someone else. The equitable considerations
are, thus, actually against him rather than in his
favour."

15. The case relied on by the petitioner
(2016) 12 SCC 342 (Md Zamil Ahmed Vs.
State of Bihar and others) is distinguishable
inasmuch in the said case the Supreme Court
did not find that the appellant had committed
any fraud for securing appointment. Paragraph15 of the said judgment, which has been relied
on by the petitioner, reads as under:-

"15. In these circumstances, we are of the
view that there was no justification on the part
of the State to wake up after the lapse of 15
years and terminate the services of the appellant
on such ground. In any case, we are of the view
that whether it was a conscious decision of the
State to give appointment to the appellant as we
have held above or a case of mistake on the part
of the State in giving appointment to the
appellant which now as per the State was
contrary to the policy as held by the learned
Single Judge, the State by their own conduct
having condoned their lapse due to passage of
time of 15 years, it was too late on the part of
the State to have raised such ground for
cancelling the appellant's appointment and
terminating his services. It was more so because
the appellant was not responsible for making
any false declaration nor he suppressed any
material fact for securing the appointment. The
State was, therefore, not entitled to take
advantage of their own mistake if they felt it to
be so. The position would have been different if
the appellant had committed some kind of fraud
or manipulation or suppression of material fact
for securing the appointment. As mentioned
above such was not the case of the State."

16. In the present case, from perusal of
petitioner's application, it is evident that the
petitioner has suppressed the material fact and
played fraud for securing public employment
and, therefore, his long continuation (15 years)
would not be of any help to him to continue to
hold his post inasmuch as his appointment was
void ab initio.

17. In view of aforesaid discussions, this
Court does not find that the impugned order
suffers from any illegality or from gross
inaccuracy and, therefore, this writ petition fails
and is, accordingly, dismissed at this stage
itself.
----------
(2022)02ILR A870
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.02.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ-A No. 17421 of 2020

Mohammed Naseem Ali ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ravi Shanker Tewari, Sheo Pal singh