# Uday Pratap Singh v. District Basic Education Officer, Basti & Ors

- **Citation:** (2023) 9 ILRA 346
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-08
- **Case number:** Writ-A No. 2134 of 2023
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uday-pratap-singh-v-district-basic-education-officer-basti-ors-50791
- **Pages:** 17

## Headnote

Law
-
Compassionate
Appointment - Re-opening the issue of
validity after 19 years - Permissibility -
Surviving spouse of deceased was in Govt.
service - No suppression of fact in
obtaining the appointment - Surviving
spouse filed his affidavit disclosing the
facts of his being in service - Effect -
Termination order was passed after 19
years - Validity challenged - Held, once
there was no concealment of facts on the
part of petitioner at the time of initial
appointment, now after elapse of about 19
years, the respondents cannot reopen the
issue on the ground that while appointing
the
petitioner
on
the
compassionate
ground,
the
District
Basic
Education
Officer did not follow the provisions of the
GO dated 04.09.2000. (Para 8, 9, 10, 31,
and 46)

B. Service Law - UP Government Servant
(Discipline and Appeal) Rules, 1999 -
Rules
7
and
8
-
Termination
-
Compassionate appointment on the post
of Assistant Teacher was made, though
surviving spouse of deceased was in Govt.
service
-
Departmental
enquiry
was
initiated on IInd time complaint made
through I.G.R.S. - Charge-sheet was
issued - After submission of the reply by
the
petitioner,
no
oral
inquiry
was
conducted i.e. no date, time and place for
holding inquiry was fixed - No enquiry
report
was
submitted
-
Effect
-
Termination order was passed after 19
years - Validity challenged - Held, once
disciplinary
proceedings
have
been
initiated by issuing a charge-sheet then
the procedure prescribed for holding
disciplinary inquiry as provided under
Rules 7 and 9 of the Rules of 1999 has to
be followed - High Court quashed the
impugned termination order. (Para 13, 49
and 50)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,997 of 57,958. This is a partial read: ask again with offset=39997 for what follows._

346 INDIAN LAW REPORTS ALLAHABAD SERIES
the real brother of Quadir Mian and also
the father-in-law of the defendants yet there
is no explanation as to why the said
memorandum since 1948 till 2007 did not
see the light of the day. The said document
is said to be proved by Sirajuddin who is
the son of the defendant No.2 Shri
Shamsuddin. No attempt was made by the
defendants to prove the writing of Barati
Mian with his signature/thumb impression
on the memorandum dated 21.08.1948.

76. At the relevant time where two
daughters of Saffi-ul-laha were married
with the defendants No.1 and 2 and both of
them were litigating since 1973 yet it was
never thought that the said memorandum
be handed over to the defendants who were
the son-in-law of Saffi-ul-laha.

77. Significantly, as already noticed,
Saffi-ul-laha was neither summoned nor he
entered into the witness-box as he would
have been a very crucial witness to
substantiate that Barati Mian had executed
the said memorandum and had handed over
the same to Saffi-ul-laha for safe custody to
be handed over to the defendants at the
appropriate time. Even after the death of
Barati Mian in the year 1950, the said
document was never handed over nor there is
any reference to it in the pleadings of the
defendants. Saffi-ul-laha being the son of
Barati Mian and real brother of Quadir Mian
and father-in-law of the defendants could
very well throw light on the aforesaid aspect
as well that is to say that whether any division
was made by Barati Mian during his lifetime
and that each of the sibling of Saffi-ul-laha
got the property which is in their possession,
as divided by Barati Mian and what portion
was gifted to the defendants from amongst
the properties of Barati Mian. He was also an
important witness to depose whether the
house in Kazipur was purchased by Quadir
Mian to settle his son from his first wife or it
was actually purchased by the uncle (Mama)
of the defendants. The defendants also did not
lead any evidence in this regard nor filed the
deed of the property of Kazipura on record.

78. In light of the aforesaid
discussions and in light of whatever
evidence was on record including the
deposition of Sirajuddin this Court has no
hesitation to concur with the reasons given
by the trial Court and the Court finds that
the alleged gift set up by the defendants
could not be cogently proved whereas the
gift made by the Quadir Mian in favour of
the plaintiffs which was reduced in writing
and duly registered before the office of
Sub-Registrar on 20.04.1967 has been
proved and that it is not bad as the gift of
undivided 'Musha'. Hence, this Court finds
that there is no error in the judgment and
decree passed by the trial Court dated
06.04.1977
passed
in
Regular
Suit
No.14/1973 and it is affirmed.

79. From the aforesaid discussions,
this Court finds that the appeal is devoid of
merits and is accordingly dismissed. In the
facts and circumstances, there shall be no
order as to costs. The record of the trial
Court shall be returned forthwith.
----------
(2023) 9 ILRA 346
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ-A No. 2134 of 2023

Uday Pratap Singh ...Petitioner
Versus
District Basic Education Officer, Basti &
Ors. ...Respondents
9 All. Uday Pratap Singh Vs. District Basic Education Officer, Basti & Ors.
347
Counsel for the Petitioner:
Sri Indra Raj Singh, Sri Adarsh Singh, Sri
Babban Singh, Satya Prakash Singh, Sri Ashok
Khare (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Singh, Sri Awadhesh
Kumar

A.
Service
Law
-
Compassionate
Appointment - Re-opening the issue of
validity after 19 years - Permissibility -
Surviving spouse of deceased was in Govt.
service - No suppression of fact in
obtaining the appointment - Surviving
spouse filed his affidavit disclosing the
facts of his being in service - Effect -
Termination order was passed after 19
years - Validity challenged - Held, once
there was no concealment of facts on the
part of petitioner at the time of initial
appointment, now after elapse of about 19
years, the respondents cannot reopen the
issue on the ground that while appointing
the
petitioner
on
the
compassionate
ground,
the
District
Basic
Education
Officer did not follow the provisions of the
GO dated 04.09.2000. (Para 8, 9, 10, 31,
and 46)

B. Service Law - UP Government Servant
(Discipline and Appeal) Rules, 1999 -
Rules
7
and
8
-
Termination
-
Compassionate appointment on the post
of Assistant Teacher was made, though
surviving spouse of deceased was in Govt.
service
-
Departmental
enquiry
was
initiated on IInd time complaint made
through I.G.R.S. - Charge-sheet was
issued - After submission of the reply by
the
petitioner,
no
oral
inquiry
was
conducted i.e. no date, time and place for
holding inquiry was fixed - No enquiry
report
was
submitted
-
Effect
-
Termination order was passed after 19
years - Validity challenged - Held, once
disciplinary
proceedings
have
been
initiated by issuing a charge-sheet then
the procedure prescribed for holding
disciplinary inquiry as provided under
Rules 7 and 9 of the Rules of 1999 has to
be followed - High Court quashed the
impugned termination order. (Para 13, 49
and 50)

Writ petition allowed. (E-1)

List of Cases cited:

1. Mohd. Zamil Ahmed Vs St. of Bihar & ors.;
2016 (2) ESC 242 (SC)

2. Jainendra Singh Vs St. of U.P. & ors.; 2012
(8) SCC 748

3. U.O.I.& anr. Vs Shashank Goswami and
another; 2012 (11) SCC 307

4. Writ Petition No. 19919 of 1993; Ramu Vs
Executive
Officer,
Nagar
Palika,
Mirzapur
decided on 31.8.2000

5. Writ A No. 5721 of 2020; Laxmikant Vs St. of
U.P. & ors. decided on 01.10.2021

6. Writ A No. 7768 of 2022; Raghav Paliwal Vs
St. of U.P.
& ors. decided on 20.09.2022

7. Special Appeal No. 1601 of 2012; Narendra
Kumar Upadhyay Vs St. of UP & ors. decided on
22.10.2021

8. Special Appeal No. 356 of 2012; Shiv Kumar
Dubey & ors. Vs St. of U.P. & ors. decided on
06.02.2014

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard Sri Ashok Khare, learned
Senior Advocate assisted by Sri Adarsh
Singh, learned counsel appearing for the
petitioner and Sri Ashok Kumar, Advocate
holding brief of Sri Awadhesh Kumar,
learned
counsel
appearing
for
the
Respondents No.1 & 2 as well as learned
Standing
Counsel
appearing
for
the
Respondent No.3.

2. Petitioner through present writ
petition has assailed the order dated
30.12.2022 passed by the District Basic
348 INDIAN LAW REPORTS ALLAHABAD SERIES
Education Officer, Basti, whereby services
of the petitioner have been terminated.

3. Facts of the case, in brief, are that
mother of the petitioner Smt. Tilakraji
Devi, while working on the post of Head
Mistress in Junior Basic School Jagdishpur,
Block Harraiya, District Basti, died in
harness on 18.10.2000. Petitioner, after
death
of
his
mother,
submitted
an
application
for
his
compassionate
appointment
and
along
with
the
application, he also submitted affidavits
given by his father and brother. In the
affidavit given by the petitioner's father, it
was categorically mentioned that he was
working as Head Master in Primary School
Khamariya Sujat, Block Harraiya, District
Basti.

4. The Selection Committee headed
by the District Basic Education Officer,
Basti
considered
the
application
for
compassionate appointment filed by the
petitioner
and
after
scrutinizing
the
documents filed along with the application,
the District Basic Education Officer, Basti
issued an order on 21.7.2003, whereby
petitioner was appointed as Assistant
Teacher (untrained grade) in Primary
School Hahi, Block Harraiya, District
Basti.

5.

Petitioner
pursuant
to
his
appointment
order
dated
21.7.2003
submitted joining in the primary school on
22.7.2003 and started discharging duties
attached to his post. Petitioner also started
getting salary from the State exchequer
with effect from 22.7.2003. Later on,
petitioner completed his in-service B.T.C.
Training Course in the year 2005 and
thereafter, the District Basic Education
Officer,
Basti
passed
an
order
on
27.9.2005, whereby petitioner was granted
pay-scale of the post of the trained
Assistant Teacher.

6. Petitioner since the date of his
initial appointment i.e. since 22.7.2003
continued to perform duties of his post and
since his work and conduct was excellent,
as such, the District Basic Education
Officer, Basti vide order dated 30.12.2010
promoted the petitioner to the post of Head
Master of Junior Basic School, Revradas II,
Block Harraiya, District Basti.

7. On 28.2.2013 one Mr. Sudesh
Bhaskar, resident of village Khamariya
Sujat, Block Harraiya, District Basti lodged
a complaint to the District Magistrate, Basti
thereby
allegation
was
levelled
that
compassionate
appointment
of
the
petitioner is against the provisions made in
the Government Order dated 4.9.2000,
wherein it is provided that if the surviving
spouse of the deceased teacher is in
government service, then his dependent
will not be entitled for compassionate
appointment, whereas at the time of
compassionate
appointment
of
the
petitioner, his father was working on the
post of Head Master in a primary school at
District Basti. Mr. Sudesh Bhaskar through
the aforesaid complaint requested the
District Magistrate, Basti to cancel the
compassionate
appointment
of
the
petitioner. The District Magistrate, Basti on
the aforesaid complaint of Mr. Sudesh
Bhaskar,
directed
the
District
Basic
Education Officer, Basti to submit a report.
The District Basic Education Officer, Basti
vide his letter dated 18.5.2013 submitted a
report to the District Magistrate, Basti,
wherein it was categorically mentioned that
at the time of compassionate appointment
of the petitioner, disclosure was made by
his father that he was working on the post
of the Head Master in Primary School
9 All. Uday Pratap Singh Vs. District Basic Education Officer, Basti & Ors.
349
Khamariya Sujat, Block Harraiya, District
Basti and only after considering all the
facts and circumstances, the petitioner was
offered compassionate appointment and
further petitioner has also been promoted to
the post of the Head Master and therefore,
after lapse of more than 10 years, now there
is no justification to entertain the complaint
of Mr. Sudeshh Bhaskar in respect of
validity of the compassionate appointment
of the petitioner. The District Basic
Education Officer, Basti in his letter dated
18.5.2013 also categorically mentioned that
the complaint lodged by Mr. Sudesh
Bhaskar may be rejected.

8. Thereafter, it appears that the
District Magistrate Basti was satisfied with
the aforesaid report submitted by the
District Basic Education Officer, Basti, as
such, no further action was taken against
the petitioner and for all practical purposes,
the complaint lodged by Mr. Sudesh
Bhaskar was found to be baseless.

9. Since compassionate appointment
of the petitioner on the complaint lodged by
Mr. Sudesh Bhaskar was not disturbed by
the District Magistrate, Basti, as such, Mr.
Sudesh Bhaskar filed a Public Interest
Litigation (P.I.L.) No.26470 of 2014 and
the said PIL was dismissed by the Division
Bench of this Court vide order dated
13.5.2014 on two grounds, firstly that
appointment of the petitioner was made
nearly 10 years ago and secondly that
Public
Interest
Litigation
is
not
maintainable in respect of a service matter
and petitioner has not disclosed his locus
satisfactorily.

10. The aforesaid Mr. Sudesh Bhaskar
did not challenge the order dated 13.5.2014
passed by the Division Bench of this Court
in
Public
Interest
Litigation
(P.I.L.)
No.26470 of 2014 and in the year 2021, he
lodged a complaint on I.G.R.S. Portal of
the State Government and on the basis of
said
complaint,
the
District
Basic
Education Officer, Basti wrote a letter
dated 7.9.2021 to the Secretary, U.P. Basic
Education Board, Prayagraj, wherein he
mentioned that the fact in respect of
employment of the father of the petitioner
was disclosed at the time of compassionate
appointment of the petitioner and the
compassionate appointment was made by
the then District Basic Education Officer,
Basti and therefore, it is not proper that the
officer of the same rank may take decision
in the matter, as such, guidance be given in
the matter. The District Basic Education
Officer, Basti thereafter passed an order on
28.9.2022 whereby payment of salary to
the petitioner was stopped till further
orders. The Secretary, U.P. Basic Education
Board, Prayagraj vide his letter dated
8.10.2022 directed the District Basic
Education
Officer,
Basti
that
since
appointment of the petitioner is contrary to
the provisions made in the Government
Order dated 4.9.2000, therefore action may
be taken by the District Basic Education
Office, Basti in accordance with law.

11. Petitioner challenged the aforesaid
orders dated 28.9.2022 and 8.10.2022 by
filing Writ-A No.17099 of 2022 and this
Court after considering the entire material
available on record, set aside the order
dated 28.9.2022 whereby payment of salary
to the petitioner was stopped and further
directed the petitioner to co-operate in the
proceedings initiated against him.

12. The District Basic Education Officer,
Basti issued a charge-sheet against the
petitioner containing five charges in respect
of his compassionate appointment and
petitioner was required to furnish his reply
350 INDIAN LAW REPORTS ALLAHABAD SERIES
to the charges levelled in the charge-sheet
within a period of 15 days. In the chargesheet dated 28.10.2022, it was mentioned
that the said charge-sheet has been issued
as per the procedure prescribed under the
U.P. Government Servant (Discipline and
Appeal) Rules, 1999 and further the main
charge against the petitioner was that his
compassionate appointment was contrary to
the provisions of the Government Order
dated 4.9.2000 as on the date of his
compassionate appointment, his father was
working on the post of Head Master in a
primary school at District Basti. Petitioner
immediately after receiving the chargesheet submitted his detailed reply on
14.11.2022
wherein
he
categorically
pointed
out
that
at
the
time
of
compassionate
appointment
of
the
petitioner, it was properly disclosed before
the concerned authority that father of the
petitioner was working as Head Master in a
primary school at District Basti as father of
the petitioner at the time of compassionate
appointment of the petitioner filed an
affidavit before the authorities of the
department wherein the said fact was
categorically disclosed. Petitioner in his
reply categorically mentioned that the
complaint lodged by Mr. Sudesh Bhaskar
was earlier enquired into by the District
Basic Education Officer, Basti and he
submitted
a
report
to
the
District
Magistrate, Basti wherein he categorically
pointed out that there was no concealment
of facts by the petitioner rather it was
disclosed to the concerned authorities that
the father of the petitioner was working as
Head Master in a primary school and
therefore, the compassionate appointment
of the petitioner, after elapse of about 10
years cannot be faulted.

13. Though the charge-sheet against
the petitioner was issued as per the
procedure
prescribed
under
the
U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999 but after submission
of the reply by the petitioner, no oral
inquiry has been conducted i.e. no date,
time and place for holding inquiry was
fixed and even no inquiry report was
prepared.

14. The District Basic Education
Officer, Basti on 22.11.2022 issued a show
cause notice, wherein charge-sheet dated
28.10.2022 and reply of the petitioner dated
15.11.2022 have been discussed but in
respect
of
petitioner's
reply
dated
15.11.2022 only this much has been said
that reply has not been found admissible in
the light of the departmental rules and
therefore, the show cause notice is being
issued. The District Basic Education
Officer, Basti in the aforesaid show cause
notice dated 22.11.2022 has considered the
fact finding report submitted by a twomember Committee prior to issuance of
charge-sheet on 28.10.2022 and on that
basis, has required the petitioner to show
cause as to why the services of the
petitioner may not be terminated and legal
action may not be initiated against the
petitioner. Petitioner submitted a detailed
reply to the aforesaid show cause notice
dated 22.11.2022 on 12.12.2022.

15. The District Basic Education
Officer, Basti has passed the final order on
30.12.2022 wherein past history of the case
has been recorded and it has been stated
that the petitioner has submitted reply to
the charge-sheet dated 28.10.2022 on
14.11.2022 but since his reply was not
found admissible, as such under the
provisions of the U.P. Government Servant
(Discipline and Appeal) Rules, 1999, show
cause notice was issued to the petitioner on
22.11.2022 and further the reply given by
9 All. Uday Pratap Singh Vs. District Basic Education Officer, Basti & Ors.
351
the petitioner to the show cause notice has
not been found satisfactory, therefore the
charge that petitioner's compassionate
appointment is contrary to the provisions of
the Government order dated 4.9.2000 is
found proved and thereby services of the
petitioner
have
been
terminated
by
cancelling his compassionate appointment.

16.

Learned
Senior
Advocate
appearing for the petitioner has submitted
that at the time of initial appointment of the
petitioner, affidavit of the petitioner's father
was filed in which he categorically stated
that he was working on the post of Head
Master in Primary School Khamariya Sujat,
Block
Harraiya,
District
Basti
and
therefore, it is apparent that there was no
suppression of facts on the part of the
petitioner at the time of his compassionate
appointment, as such, even if some
provisions of the Government Order dated
4.9.2000 were not taken into account and
competent authority offered compassionate
appointment to the petitioner, the same
cannot be nullified after elapse of about 20
years.

17.

Learned
Senior
Advocate
appearing for the petitioner has also argued
that the complaint lodged by Mr. Sudesh
Bhaskar was considered and a detailed
reply was submitted by the District Basic
Education Officer, Basti vide his letter
dated 18.5.2013 to the District Magistrate,
Basti, wherein a categorical finding was
recorded that petitioner did not suppress
any material fact at the time of his
compassionate
appointment
rather
his
father in the affidavit candidly disclosed
that he was working as Head Master in a
primary school and thereby the District
Basic Education Officer, Basti in his letter
dated 18.5.2023 said that since there was
no fault attributable to the petitioner in his
compassionate appointment, therefore after
elapse of about 10 years, there is no
occasion for disturbing the petitioner's
appointment. The District Magistrate, Basti
pursuant to the aforesaid report submitted
by the District Basic Education Officer,
Basti vide his letter dated 18.5.2013 did not
take any action and thereby it can easily be
inferred that the departmental authorities
did not find any illegality committed by the
petitioner and therefore, his compassionate
appointment was not disturbed but now the
District Basic Education Officer, Basti has
taken complete U-turn and has passed order
dated 30.12.2022 whereby services of the
petitioner
have
been
terminated
by
cancelling his compassionate appointment,
as such, the impugned order dated
30.12.2022 cannot sustain in the eyes of
law.

18.

Learned
Senior
Advocate
appearing for the petitioner has also
vehemently argued that complainant Mr.
Sudesh Bhaskar when failed to disturb the
compassionate
appointment
of
the
petitioner, filed a Public Interest Litigation
(PIL) No.26470 of 2014 and the Division
Bench of this Court, while taking note of
fact that petitioner's appointment was made
10 years ago and Public Interest Litigation
in respect of service matter is not
maintainable, dismissed the petition vide
order dated 13.5.2014, then now after
elapse of 20 years the District Basic
Education Officer, Basti, while passing the
impugned order dated 30.12.2022 has in
fact ignored the said order dated 13.5.2014
passed by the Division Bench of this Court
and therefore, the impugned order dated
30.12.2022 is unsustainable in the eyes of
law.

19.

Learned
Senior
Advocate
appearing for the petitioner has also invited
352 INDIAN LAW REPORTS ALLAHABAD SERIES
attention of this Court that the District
Basic Education Officer, Basti started
disciplinary
proceedings
against
the
petitioner as per the procedure prescribed
under the U.P. Government Servants
(Discipline and Appeal) Rules, 1999 and
issued a charge-sheet on 28.10.2022 and
the petitioner also submitted his reply to the
said charge sheet but thereafter, no
procedure prescribed under the Rules of
1999 for holding inquiry and passing the
punishment order, has been followed and
the District Basic Education Officer, Basti
has staightaway passed the impugned order
dated 30.12.2022 wherein only this much
has been said that the reply submitted by
the petitioner to the show cause notice, has
not been found satisfactory and thereby has
terminated services of the petitioner by
cancelling his compassionate appointment.
Learned Senior Advocate appearing for the
petitioner has further submitted that it is
well settled proposition of law through
catena of judgments of this court as well as
of the Hon'ble Supreme Court that once the
disciplinary
proceedings
have
been
initiated, then the procedure prescribed
under the Rules in respect of disciplinary
inquiry and punishment order ought to be
followed stricto sensu, whereas in the
present case, no inquiry has been held by
fixing date, time and place for holding
inquiry, no evidence has been recorded
during the inquiry and further even inquiry
report has not been submitted, as such it is
apparent that the procedure prescribed
under Rule 7 and Rule 9 of the U.P.
Government
Servants
(Discipline
and
Appeal) Rules, 1999 has not been followed
at all, therefore, the impugned order dated
30.12.2022 cannot sustain in the eyes of
law.

20.

Learned
Senior
Advocate
appearing for the petitioner has invited
attention of this Court towards the
judgment rendered by the Hon'ble Supreme
Court in the case of Mohd. Zamil Ahmed
vs. State of Bihar and others, reported in
2016 (2) ESC 242 (SC) and has argued that
the Hon'ble Supreme Court in the aforesaid
judgment has held that once there was no
concealment of facts on the part of
government servant at the time of his initial
appointment, then after 20 years of his
appointment, the same cannot be nullified
only on the ground that as per the State
policy, the said appointment could not have
been made.

21.

Learned
Senior
Advocate
appearing
for
the
petitioner
has
emphatically argued that essence of time is
vital in those cases where it is admitted that
the candidate did not play any fraud or
concealed the facts for securing his
appointment, therefore after a elapse of
long time, the said appointment cannot be
nullified only on the ground that the
authorities of the department, while making
appointment, were not vigilant to see that
the said appointment under the provisions
of the relevant Government Order could
not have been made and in the present case,
it is admitted by the department that
petitioner has neither suppressed any fact
nor played any fraud to secure his
compassionate appointment rather all the
relevant facts were disclosed, therefore
after elapse of 20 years from the date of
initial appointment of the petitioner, his
appointment cannot be nullified on the
ground that he was not entitled for
compassionate appointment as his father at
that point of time was working as Head
Master in a primary school, therefore the
impugned order dated 30.12.2022 is
absolutely unsustainable in the eyes of law.
It has further been submitted by the learned
Senior
Advocate
appearing
for
the
9 All. Uday Pratap Singh Vs. District Basic Education Officer, Basti & Ors.
353
petitioner that it has also to be seen by this
court that department of Basic Education
did not take any objection to the
appointment of the petitioner and it was
only a private person who lodged a
complaint and when the said complaint did
not find favour of the departmental
authorities, he filed a Public Interest
Litigation (PIL), that too was dismissed
taking into note of the fact that petitioner's
appointment was made 10 years back, then
there is no occasion for the District Basic
Education Officer, Basti to cancel the
appointment of the petitioner on behest of
the private complainant.

22.

Learned
Senior
Advocate
appearing for the petitioner has thus
concluded his arguments and has submitted
that the impugned order dated 30.12.2022
passed by the District Basic Education
Officer, Basti, whereby petitioner's services
have been terminated by cancelling his
appointment, is unsustainable in the eyes of
law and therefore, is liable to be quashed
by this Court.

23. Per contra, learned counsels
appearing
for
the
respondents
have
submitted that the State Government has
issued a Government Order on 4.9.2000,
wherein it has categorically been provided
that if the surviving spouse of the deceased
teacher is in government service, then
dependent of the deceased teacher is not
entitled for compassionate appointment.
Since on the date of death of petitioner's
mother, his father was working as Head
Master in Primary School Khamariya Sujat,
Block Harraiya, District Basti, therefore in
view of the provisions of the aforesaid
Government
Order
dated
4.9.2000,
petitioner
was
not
entitled
for
compassionate appointment and, as such,
the appointment of the petitioner made in
the year 2003 is void ab initio and his
services have rightly been terminated by
the District Basic Education Officer, Basti
by cancelling his appointment.

24. Learned counsels appearing for
the respondents have further submitted that
appointment of the petitioner was dehors to
the provisions of the Government Order
dated 4.9.2000, therefore the District Basic
Education Officer, Basti issued a chargesheet to the petitioner and after taking his
reply, he issued a show cause notice to the
petitioner to which he submitted reply and
thereafter, the District Basic Education
Officer, Basti has passed the order dated
30.12.2022 whereby petitioner's services
have been terminated by cancelling his
appointment, therefore there is neither any
illegality nor infirmity in the impugned
order dated 30.12.2022.

25. Learned counsels appearing for
the respondents have vehemently argued
that the issue involved in this writ petition
has already been dealt with by this court as
well as by the Hon'ble Supreme Court in
number of cases and it has been held that if
initial appointment was made contrary to
the provisions made in the rules, then the
said appointment is void ab initio and same
can be nullified even after elapse of
considerable length of time.

26. Learned counsels appearing for
the respondents have relied upon following
judgments:-

(i) Judgment rendered by the Hon'ble
Supreme Court in the case of Jainendra
Singh vs. State of U.P. and others,
reported in 2012 (8) SCC 748.

(ii) Judgment rendered by the Hon'ble
Supreme Court in the case of Union of
India and another vs. Shashank Goswami
354 INDIAN LAW REPORTS ALLAHABAD SERIES
and another, reported in 2012 (11) SCC
307.

(iii)
Judgment
and
order
dated
31.8.2000 passed by High Court in Writ
Petition No.19919 of 1993 (Ramu vs.
Executive
Officer,
Nagar
Palika,
Mirzapur).

(iv)
Judgment
and
order
dated
1.10.2021 passed by High Court in Writ-A
No.5721 of 2020 (Laxmikant vs. State of
U.P. and others).

(v)
Judgment
and
order
dated
20.9.2022 passed by the Division Bench of
High Court in Writ-A No.7768 of 2022
(Raghav Paliwal vs. State of U.P. and
others).

(vi)
Judgment
and
order
dated
22.10.2021 passed by the Division Bench of
High Court in Special Appeal No.1601 of
2012 (Narendra Kumar Upadhyay vs.
State of UP and others).

(vii)
Judgment
and
order dated
6.2.2014 passed by the Division Bench of
High Court in Special Appeal No.356 of
2012 (Shiv Kumar Dubey and others vs.
State of U.P. and others).

27. Learned counsels appearing for
the respondents on the basis of the law laid
down in the aforementioned cases have
concluded their arguments by submitting
that there is neither any illegality nor
infirmity in the impugned order dated
30.12.2022 passed by the District Basic
Education Officer, Basti and therefore, the
writ petition filed by the petitioner deserves
to be dismissed.

28. I have considered the submissions
advanced by the learned counsels appearing
for the parties.

29. I find that after the death of
mother of the petitioner, he applied for
compassionate
appointment.
Petitioner
along with his application also filed
affidavits given by his father and brother.
Father of the petitioner in his affidavit
categorically stated that he was working on
the post of Headmaster in Primary School,
Khamariya
Shujat,
Block,
Harraiya,
District Basti. I also find that the then
District Basic Education Officer, Basti after
considering the entire material available
before him issued appointment order dated
21.07.2003
whereby
petitioner
was
appointed as untrained Assistant Teacher on
compassionate ground. State Government
has issued a Government Order on
04.09.2000 wherein it has been provided
that if the surviving spouse of the deceased
teacher is in government service then
dependent of the deceased teacher is not
entitled for compassionate appointment.

30. The aforesaid government order
was very well available at the time of
compassionate
appointment
of
the
petitioner and the then District Basic
Education Officer after considering the
entire
material
available
on
record
appointed petitioner on the post of
untrained
Assistant
Teacher
on
compassionate ground.

31. Now after elapse of 19 years,
petitioner's services have been terminated
by cancelling his appointment from the
date of his initial appointment.

32. Learned counsel appearing for the
respondents has relied upon judgement
rendered by the Hon'ble Supreme Court in
the case of Jainendra Singh Vs. State of
U.P. and others 2012 (8) SCC 748 and has
submitted that in the said judgment,
Hon'ble Supreme Court has laid down the
law that if the material facts have been
concealed
at
the
time
of
initial
appointment, then on disclosure of the said
9 All. Uday Pratap Singh Vs. District Basic Education Officer, Basti & Ors.
355
facts, the appointment can be cancelled.
The relevant portion of the judgment of the
Hon'ble Supreme Court is extracted as
under:

"29. As noted by us, all the above
decisions were rendered by a Division
Bench of this Court consisting of two
Judges and having bestowed our serious
consideration to the issue, we consider that
while dealing with such an issue, the Court
will have to bear in mind the various
cardinal principals before granting any
relief to the aggrieved party, namely:

29.1. Fraudulently obtained orders of
appointment could be legitimately treated
as voidable at the option of the employer or
could be recalled by the employer and in
such cases merely because the respondent
employee has continued in service for a
number of years, on the basis of such
fraudulently obtained employment, cannot
get any equity in his favour or any estoppel
against the employer.

29.2. Verification of the character and
antecedents is one of the important criteria
to test whether the selected candidate is
suitable to the post under the State and on
account of his antecedents the appointing
authority if finds it not desirable to appoint
a person to a disciplined force can it be
said to be unwarranted.

29.3. When appointment was procured
by a person on the basis of forged
documents,
it
would
amount
to
misrepresentation
and
fraud
on
the
employer and, therefore, it would create no
equity in his favour or any estoppel against
the employer while resorting to termination
without holding any inquiry.

29.4. A candidate having suppressed
material information and/or giving false
information cannot claim right to continue
in service and the employer, having regard
to the nature of employment as well as
other aspects, has the discretion to
terminate his services.

29.5. The purpose of calling for
information regarding involvement in any
criminal case or detention or conviction is
for the purpose of verification of the
character/antecedents
at
the
time
of
recruitment and suppression of such
material information will has a clear
bearing on the character and antecedents
of the candidate in relation to his continuity
in service.

29.6. The person who suppressed the
material information and/or gives false
information cannot claim any right for
appointment or continuity in service.

29.7. The standard expected of a
person intended to serve in uniformed
service is quite distinct from other services
and, therefore, any deliberate statement or
omission regarding a vital information can
be seriously viewed and the ultimate
decision of the appointing authority cannot
be faulted.

29.8. An employee on probation can
be discharged from service or may be
refused employment on the ground of
suppression of material information or
making false statement relating to his
involvement
in
the
criminal
case,
conviction or detention, even if ultimately
he was acquitted of the said case, inasmuch
as such a situation would make a person
undesirable or unsuitable for the post.

29.9. An employee in the uniformed
service presupposes a higher level of
integrity as such a person is expected to
uphold the law and on the contrary such a
service born in deceit and subterfuge
cannot be tolerated.

29.10. The authorities entrusted with
the responsibility of appointing constables,
are under duty to verify the antecedents of
a candidate to find out whether he is
suitable for the post of a constable and so
356 INDIAN LAW REPORTS ALLAHABAD SERIES
long as the candidate has not been
acquitted in the criminal case, he cannot be
held to be suitable for appointment to the
post of constable."

33. I find that the aforesaid judgement
relied on by the learned counsel appearing
for the respondents is of no help to the
respondents as in the case of petitioner, it is
admitted fact on the part of the respondents
that there was no suppression of relevant
facts by the petitioner at the time of his
compassionate appointment.

34. Learned counsels appearing for
the
respondents
have
relied
upon
judgement
rendered
by
the
Hon'ble
Supreme Court in the case of Union of
India and another vs. Shashank Goswami
and another 2012 (11) SCC 307 and have
submitted that Hon'ble Supreme Court has
laid down the law that appointment on
compassionate basis should be made
strictly in accordance with the prevailing
compassionate
scheme
and
since
petitioner's compassionate appointment is
contrary to the provisions of Government
Order dated 04.09.2000, therefore, said
appointment has rightly been cancelled.

35. I find that in the aforesaid case
before
the
Hon'ble
Supreme
Court,
candidate
was
denied
compassionate
appointment and candidate challenged the
order
whereby
his
candidature
for
compassionate appointment was rejected
and then Hon'ble Supreme Court in its
judgement has recorded a finding that the
compassionate appointment can be offered
only
in
accordance
with
the
rules,
regulations and administrative instructions
whereas in the present case, petitioner was
appointed on compassionate basis in the
year 2003 and he has been allowed to
continue in service for about 19 years and
thereafter his compassionate appointment
has been cancelled, as such on the facts of
the present case, the aforesaid judgement
rendered by the Hon'ble Supreme Court is
not applicable.

36. Learned counsels appearing for
the respondents have relied upon judgment
and order dated 31.08.2000 rendered by
this court in Writ Petition No. 19919 of
1993 (Ramu Vs. Executive Officer, Nagar
Palika, Mirzapur) and have submitted that
in the said judgement, this Court has
recorded a finding that even if any person
has illegally been appointed by the
respondents under the Dying in Harness
Rules, such appointment cannot confer any
right on the candidate to claim appointment
or to continue in service. I find that
petitioner of the aforesaid case was
appointed on 10.10.1991 on compassionate
ground and his services were terminated on
12.05.1993 i.e. in less than two years
whereas in the present writ petition, there
was no suppression of material facts on the
part of petitioner and he has been allowed
to continue his service for about 19 years,
therefore, facts of the present case are
entirely different, as such, in the given facts
and circumstances, judgement and order
dated 31.08.2000 rendered by this Court is
inapplicable.

37. Learned counsel appearing for the
respondents have relied upon judgement
and order dated 1.10.2021 rendered by this
Court in Writ-A No. 5721 of 2020
(Laxmikant vs. State of U.P. and others). I
find that in the aforesaid writ petition,
petitioner challenged the order by which
his claim for compassionate appointment
was rejected whereas petitioner of the
present writ petition was appointed on
compassionate ground in the year 2003 and
has continued in service for about 19 years,
therefore, on the facts of the present case,
9 All. Uday Pratap Singh Vs. District Basic Education Officer, Basti & Ors.
357
aforesaid judgement and order dated
1.10.2021 is inapplicable.

38. Learned counsels appearing for
the
respondents
have
relied
upon
judgement and order dated 20.09.2022
rendered by this Court in Writ-A No. 7768
of 2022 (Raghav Paliwal vs. State of U.P.
and others). I find that the petitioner in the
aforesaid writ petition challenged the order
whereby his case for appointment on
compassionate
ground
was
rejected
whereas in the case of petitioner, his
compassionate compassionate appointment
has been cancelled after about 19 years of
his appointment, as such on the facts,
aforesaid judgement and order dated
20.09.2022 is inapplicable.

39. Learned counsels appearing for
the
respondents
have
relied
upon
judgement rendered by Division Bench of
this Court on 22.10.2021 in Special Appeal
No. 1601 of 2012 (Narendra Kumar
Upadhyay vs. State of UP and others). I
find that in the case before Division Bench
of this court, teacher died in harness on
07.07.1991 and by concealment of material
fact,
compassionate
appointment
was
obtained on 31.03.2010 and thereafter the
said
appointment
was
cancelled
on
14.04.2012, as such, in the facts and
circumstances of that case, Division Bench
of this court has laid down law that where
compassionate
appointment
has
been
obtained after 19 years from the date of
death by concealing material fact, the same
can be cancelled, whereas in the present
case, petitioner has not suppressed any
material facts and he was appointed on
compassionate ground in the year 2003 and
he continued to wok for 19 years, as such
in the facts and circumstances of the
present case, the aforesaid judgement and
order dated 22.10.2021 passed by the
Division
Bench
of
this
Court
is
inapplicable.

40. Lastly learned counsels appearing
for the respondents have relied upon the
Full Bench judgement of this Court
rendered in the Special Appeal No. 356 of
2012 (Shiv Kumar Dubey and others vs.
State of U.P. and others). I find that the
Full Bench of this Court in the aforesaid
case was considering as to in what manner,
appointment under the Uttar Pradesh
Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974
should be made. The relevant portion of the
aforesaid judgement rendered by the
Division Bench of this court is extracted as
under:

29.