# Suresh Kumar v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 960
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-05-01
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-kumar-v-state-of-u-p-and-others-42029
- **Pages:** 4

## Headnote

Constitution
of
India
Article
226compassionate
appointment-petitioner
on death of his father-offered the post of
constable keeping in view of minimum
age of 21 years-after joining on post of
constable and attaining age of 21 yearsclaimed appointment on post of SubInspector-held-can not be allowed to
claim higher post as a matter of rightreasons disclosed.

Held: Para 10

In view of the above, the law laid down
by the Apex Court and by this Court, it is
settled that once the right to get the
compassionate
appointment
is
exhausted
after
accepting
the
appointment on one post, the person has
no right to claim any higher post on
compassionate appointment.
Case law discussed:
1995 SCC (L&S), 10; (2008) 1 SCC (L&S), 769;
(2009) 2 SCC (L&S), 224; (2007) 2 SCC (L&S),
417
2 All] Suresh Kumar V. State of U.P. and others

961

## Text

960 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

fact arises only when a person is said to be
aware of a particular fact. In so far as the
second submission of learned counsel for
the Corporation that even if the petitioner's
husband underwent medical treatment after
taking of the policy, he ought to have
informed the Corporation about the
subsequent treatment, suffice it to say that
no such ground has been taken in the
impugned order rejecting his claim. The
respondents cannot be permitted to add a
new ground for rejection of the claim in
arguments, which has not been mentioned
in the impugned order.

22. The aforesaid two judgements
relied upon by learned counsel for the
petitioner support the submissions of the
petitioner's counsel. We are satisfied that
there
was
no
material
before
the
Corporation to record a finding that the
deceased has concealed any disease or any
treatment which he underwent before
taking of the proposal and the rejection of
the claim in such facts and circumstances
is totally arbitrary and unjust. The
deceased died on 6th September, 2007.
Four years have passed from the aforesaid
date and his widow has been waiting for
the benefit of the policy for last more than
four years.

23. We are of the view that the
Corporation in addition to the amount,
which was entitled to be paid under the
policy, shall also pay the interest at the
Bank rate on the said amount calculating
the same with effect from the date of death
of the deceased. The impugned orders
dated 1st May, 2008 and 19th May, 2009
passed by the respondents are set aside.
The respondents are directed to make the
payment, as directed above, within one
month from the date a copy of this order is
produced before them. The writ petition is
allowed. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED; ALLAHABAD 05.08.2011

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No.43203 OF 2011

Suresh Kumar

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare

Counsel for the Respondents:
M/S Suman Sirohi(S.C.)
C.S.C.

Constitution
of
India
Article
226compassionate
appointment-petitioner
on death of his father-offered the post of
constable keeping in view of minimum
age of 21 years-after joining on post of
constable and attaining age of 21 yearsclaimed appointment on post of SubInspector-held-can not be allowed to
claim higher post as a matter of rightreasons disclosed.

Held: Para 10

In view of the above, the law laid down
by the Apex Court and by this Court, it is
settled that once the right to get the
compassionate
appointment
is
exhausted
after
accepting
the
appointment on one post, the person has
no right to claim any higher post on
compassionate appointment.
Case law discussed:
1995 SCC (L&S), 10; (2008) 1 SCC (L&S), 769;
(2009) 2 SCC (L&S), 224; (2007) 2 SCC (L&S),
417
2 All] Suresh Kumar V. State of U.P. and others

961
(Delivered by Hon'ble Rajes Kumar, J.)

1. Heard Sri Siddharth Khare,
learned counsel for the petitioner and Ms.
Suman Sirohi, learned Standing Counsel.

2. The petitioner's father was the
employee in the police department, who
expired on 01.01.1999. After the death of
his father, the petitioner applied for the
compassionate
appointment.
The
petitioner
claimed
compassionate
appointment on the post of Sub-Inspector.
Since the petitioner was not eligible for
the post Sub-Inspector, the petitioner was
given compassionate appointment on the
post of Constable, which the petitioner
has accepted and joined the post of
Constable. It appears that the eligibility
age of the post of Sub-Inspector was 21
years, which the petitioner could not fulfil
and therefore, the offer for the post of
Sub-Inspector has not been accepted.
Later on when the petitioner attained the
age of 21 years, the petitioner moved an
application that now he is eligible for the
post of Sub-Inspector and the same may
be considered.

3. Learned Standing Counsel
submitted
that
once
the
petitioner
accepted the compassionate appointment
on the post of Constable, his right for the
higher post is consummated and ceases to
exist and his appointment on the higher
post can not be accepted. Reliance is
placed on the various decisions of the
Apex Court.

4. I have considered the rival
submissions and perused the decisions
cited by both the sides.

5. I do not find any substance in the
argument of learned counsel for the
petitioner.

6. In the case of State of Rajasthan
Vs. Umrao Singh, reported in 1995
SCC (L&S), 10. The Apex Court held as
follows:

"Admittedly
the
respondent's
father died in harness while working as
Sub-Inspector, CID (Special Branch)
on 16.3.1988. The respondent filed an
application
on
8-4-1988
for
his
appointment on compassionate ground
as Sub-Inspector or LDC according to
the availability of vacancy. On a
consideration of his plea, he was
appointed to the post of LDC by order
dated 14-12-1989. He accepted the
appointment on compassionate ground
was
consummated.
No
further
consideration on compassionate ground
would ever arise. Otherwise, it would
be a case of "endless compassion".
Eligibility to be appointed as SubInspector of Police is one thing, the
process of selection is yet another thing.
Merley
because
of
the
so-called
eligibility, the learned Single Judge of
the High Court was persuaded to the
view that direction be issued under
proviso to Rule 5 of Rules which has no
application to the facts of this case."

7. In the case of Andhra Pradesh
State Road Transport Corporation,
Musheerabad
and
others
Vs.
Sarvarunnisa
Begum,
reported
in
(2008) 1 SCC (L&S), 769. The Apex
Court held as follows:

5.
In
the
present
case,
the
additional monetary benefit has been
given to the widow apart from the
962 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

benefits available to the widow after the
death of her husband to get over the
financial constraints on account of
sudden death of her husband and, thus,
as a matter of right, she was not
entitled to claim the compassionate
appointment and that too when it had
not been brought to the notice of the
Court that any vacancy was available
where the respondent could have been
accommodated
by
giving
her
a
compassionate
appointment.
That
apart, the Division Bench of the High
Court has committed an error in
modifying the direction of the Single
Judge by directing the Corporation to
appoint the respondent when no appeal
was preferred by the respondent
challenging order of the Single Judge."

8. In the case of Santosh Kumar
Dubey Vs. State of Uttar Pradesh and
others, reported in (2009) 2 SCC
(L&S), 224. The Apex Court held as
follows:

"11. The very concept of giving a
compassionate appointment is to tide
over the financial difficulties that are
faced by the family of the deceased due
to the death of the earning member of
the family. There is immediate loss of
earning for which the family suffers
financial hardship. The benefit is given
so that the family can tide over such
financial constraints.

12. The request for appointment
on compassionate grounds should be
reasonable and proximate to the time of
the death of the bread earner of the
family, inasmuch as the very purpose of
giving such benefit is to make financial
help available to the family to overcome
sudden economic crisis occurring in the
family of the deceased who has died in
harness. But this, however, cannot be
another source of recruitment. This
also cannot be treated as a bonanza and
also as a right to get an appointment in
government service."

9. In the case of I.G. (Karmik) and
others Vs. Prahalad Mani Tripathi,
reported in (2007) 2 SCC (L&S), 417.
The Apex Court held as follows:

"12. Furthermore, the respondent
accepted the said post without any
demur whatsoever. He, therefore, upon
obtaining appointment in a lower post
could not have been permitted to turn
round and contend that he was entitled
for a higher post although not eligible
therefor. A person cannot be appointed
unless he fulfils the eligibility criteria.
Physical fitness being an essential
eligibility
criteria.
Physical
fitness
being an essential eligibility criteria, the
Superintendent of Police could not have
made any recommendation in violation
of the rules. Nothing has been shown
before us that even the petitioner came
within the purview of any provisions
containing grant of relaxation of such
qualification.
Whenever,
a
person
invokes such a provision, it would be
for him to show that the authority is
vested with such a power."

10. In view of the above, the law
laid down by the Apex Court and by this
Court, it is settled that once the right to
get the compassionate appointment is
exhausted after accepting the appointment
on one post, the person has no right to
claim any higher post on compassionate
appointment.
2 All] Dr. Rajesh Kumar Singh V. State of U.P. and others

963

11. In view of the above, the writ
petition
fails
and
is
accordingly,
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2011

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 43232 of 2011

Dr. Rajesh Kumar Singh
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Shailendra

Counsel for the Respondents:
Sri Ashok Khare
Sri B.D. Pandey
Sri Salil Kumar Rai
Sri Sudhanshu Pandey
C.S.C.

Gorakhpur
University-U.P.
State
Universities Act Statutes 18-9-Appeal
against
determination
of
senioritydecided
without
affording
any
opportunity to the effected petitioner
without disclosing any reason disturbed
the finding of the Dean of the Facultyignoring the provision of statute 18.07 if
date of joining are same-person being
senior in age shall be treated as seniorheld-order entails civil consequences-can
not be passed without following the
principle
of
Natural
Justice-order
impugned
quashed
with
necessary
direction to the executive council.

Held: Para 15

In the present case, nothing of this kind
has
been
done.
Neither
has
an
opportunity been given to the petitioner
before the Executive Council in its
meeting held on 12.6.2011 nor any
reasons have been given for disagreeing
with
the
order
of
the
Seniority
Committee.
As
such,
the
order/resolution no. 39 of the Executive
Council passed on 12.6.2011 deserves to
be quashed.
Case law discussed:
1952 SCR 284; (1978) 1 SCC 248; (1978) 1
SCC 405; 1993 SCC 259

(Delivered by Hon'ble Vineet Saran, J.)

1. Heard Sri Shailendra, learned
counsel appearing for the petitioner as well
as learned Standing Counsel appearing for
the State respondent no.1, Sri B.D. Pandey,
learned counsel for the respondents no. 2
and 3 and Sri Ashok Khare, learned Senior
Counsel along with Sri Salil Kumar Rai,
learned
counsel
appearing
for
the
respondent no. 4-Smt. Vinita Pathak and
have perused the record.

2.

Learned
counsel
for
the
respondents have categorically stated that
this writ petition may be disposed of
finally at the admission stage without
calling for a counter affidavit. As such,
with consent of learned counsel for the
parties, this writ petition is being disposed
of finally at the admission stage.

3. The brief facts of this case are that
the petitioner-Dr. Rajesh Kumar Singh as
well as respondent no. 4-Dr. Smt. Vinita
Pathak were given substantive appointment
in the Political Science department of the
University by the decision of the Executive
Council dated 1.12.1996. Besides other
appointments,
there
were
three
appointments made in the Political Science
department and in the list of appointees,
the name of the respondent no. 4 was
shown at serial no. 1 and that of the
petitioner at serial no. 3. Thereafter, in the