# Urmila Devi v. State of U.P. and another

- **Citation:** (2010) 3 ILRA 1010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-09-23
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/urmila-devi-v-state-of-u-p-and-another-41715
- **Pages:** 3

## Headnote

Constitution
of
India
Art.
226Compassionate
appointment-cancelled
after 11 years ground lack of educational
qualification-petitioner
on
basis
of
Madhayama
equivalent
intermediatewas given appointment on class III postsubsequently if found that the certificate
of Sahitya Sammelan is not equivalent to
Intermediate-held-being
High
school
entitled for appointment on class 4th
post- petitioner not guilty committed any
fraud- appointment on class 4th post be
made within 3 weeks.

Held: Para 7

So far as the status of the petitioner is
concerned, it is undoubtedly admitted to
the
opposite
parties
that
she
was
entitled for compassionate appointment.
The petitioner did not play any fraud nor
has she committed any such act which
may amount to misrepresentation. In
such a situation the petitioner was
entitled for an employment and keeping
in view the fact that she has passed her
High School from the U.P. Board, she
was
entitled
for
a
compassionate
appointment
against
a
post
commensurate to such qualification.
Case law discussed:
(2006) 1 U.P.L.B.E.C 719.

## Text

1010 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
authorities on the basis of impugned
orders, the same are liable to be corrected
and revenue entries be rectified.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 61214 Of 2008

Urmila Devi

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

Counsel for the Petitioner:
Sri Ram Autar Verma,
Sri Ghan Shyam Das

Counsel for the Respondents:
C.S.C.

Constitution
of
India
Art.
226Compassionate
appointment-cancelled
after 11 years ground lack of educational
qualification-petitioner
on
basis
of
Madhayama
equivalent
intermediatewas given appointment on class III postsubsequently if found that the certificate
of Sahitya Sammelan is not equivalent to
Intermediate-held-being
High
school
entitled for appointment on class 4th
post- petitioner not guilty committed any
fraud- appointment on class 4th post be
made within 3 weeks.

Held: Para 7

So far as the status of the petitioner is
concerned, it is undoubtedly admitted to
the
opposite
parties
that
she
was
entitled for compassionate appointment.
The petitioner did not play any fraud nor
has she committed any such act which
may amount to misrepresentation. In
such a situation the petitioner was
entitled for an employment and keeping
in view the fact that she has passed her
High School from the U.P. Board, she
was
entitled
for
a
compassionate
appointment
against
a
post
commensurate to such qualification.
Case law discussed:
(2006) 1 U.P.L.B.E.C 719.

(Delivered by Hon'ble A.P. Sahi, J.)

1. The petitioner is the widow of late
Sri Ved Prakash who was a Lekhpal and
died in harness on 16th December 1996.
The petitioner was offered appointment
on compassionate basis on the strength of
her
certificate
from
Hindi
Sahitya
Sammelan which the petitioner claims
equivalent
to
the
Intermediate
examinations conducted by the Board of
High School and Intermediate, Uttar
Pradesh. The petitioner was accordingly
appointed as a Class III employee keeping
in view the aforesaid qualification.

2. The petitioner however did not
make any efforts to learn typing and
subsequently the petitioner was put to
notice that her services would be
terminated in case she does not improve
upon herself. The petitioner has been now
found ineligible to continue on the said
post, vide order dated 25th September
2008 on the ground that her qualification
at the time of her initial appointment was
not
Intermediate,
inasmuch
as
the
certificate
from
the
Hindi
Sahitya
Sammelan obtained by her was not an
equivalent qualification.

3. Learned counsel contends that the
said order works great hardship inasmuch
as the petitioner has lost her service that
too even after 11 years of having served
3 All] Urmila Devi V. State of U.P. and another
1011
the
respondents
and
therefore
the
impugned order deserves to be set aside.

4. Learned Standing Counsel on the
other hand contends that the law as
declared by the Supreme Court is that an
illegality cannot be cured and had the
petitioner
improved
upon
her
qualifications the same could have been
regularised keeping in view the offer
made
by
the
respondents
which
opportunity was not availed of by the
petitioner. He therefore submits that the
impugned order does not suffer from any
infirmity much less a legal infirmity so as
to interfere in the exercise of jurisdiction
under Article 226 of the Constitution of
India.

5. Having heard learned counsel for
the parties and perused the affidavits, the
fact that the petitioner was ineligible
could not be successfully disputed by the
learned
counsel
for
the
petitioner
inasmuch as the certificate of the
petitioner for Intermediate examinations
has not been found to be equivalent upon
a verification by the Board. In such
situation, the petitioner was therefore not
eligible for being appointed against a
Class III post.

6. Needless to say that the alleged
ineligibility of the petitioner cannot be
cured in view of her long years of service
as per law laid down by the Apex Court in
the case of Mohd. Sartaj & another Vs.
State of U.P. & Ors., reported in (2006)
1 U.P.L.B.E.C 719.

7. So far as the status of the
petitioner is concerned, it is undoubtedly
admitted to the opposite parties that she
was
entitled
for
compassionate
appointment. The petitioner did not play
any fraud nor has she committed any such
act
which
may
amount
to
misrepresentation. In such a situation the
petitioner was entitled for an employment
and keeping in view the fact that she has
passed her High School from the U.P.
Board,
she
was
entitled
for
a
compassionate appointment against a post
commensurate to such qualification.

8. Accordingly the Court is of the
firm opinion, that even though the
impugned order dated 25.9.2008 may not
require any interference, in view of the
conclusions
drawn
hereinabove
the
petitioner is entitled for a mandamus
directing the respondents to forthwith
appoint the petitioner against a Class IV
post or any other post equivalent and
commensurate
to
the
qualifications
possessed by the petitioner keeping in
view her status as indicated hereinabove.
She would be entitled for relaxation in
age in the event she has crossed the upper
age limit for such employment.

9. Accordingly the writ petition is
allowed to the aforesaid extent with a
direction to the respondent District
Magistrate Etah to ensure that the
petitioner is appointed against a Class IV
post without any further delay as early as
possible but not later than three weeks
from the date of presentation of a certified
copy of this order before him.

10. It is further made clear that the
respondents shall not take any further
action pursuant to the impugned order
including recovery of salary etc.
---------
1012 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
APPELLATE JURISDICTIONS
CIVIL SIDE
DATED: ALLAHABAD 18.08.2010

BEFORE
THE HON'BLE FERDINO I. REBELLO, CJ.
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE VIRENDRA SINGH, J.

Special Appeal No.1093 of 2010

Constable cp 201 Vinod Kumar and
another

...Appellants
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Petitioners:
Mr. Ram Kumar Dubey
Mr. Vijay Gautam
Mr. V.K. Singh

Counsel for the Respondents:
Mr. M.C. Chaturvedi, (C.S.C.)
Mr. Piyush Shukla, (S.C.)
Dr. Y.K. Srivastava, (S.C.)
Mr. M.S. Pipersenia, (S.C.).

U.P. (Civil Police) Constable and Head
Constable Service Rules, 2008-Read
with U.P. Police Act-1861-Section 2Constitution of Board without including
Director General of Police-instead of
one-four Board Constituted-held-proper
sufficient compliance of direction of
Apex Court in Prakash Singh caseconstitution
of
Board.
even
not
traceable to Act-can be termed as
irregularity-transfer of Constable and
Head Constable in terms of Service
Rules Regulation on approval of Board
not initiated.

Held Para 21

In these circumstances, we are clearly
of the opinion that, though we have
found that the notification constituting
the Board is not traceable to Section 2
of the Police Act, the same at the
highest, amounts to an irregularity and
not illegality and would not vitiate the
transfers, if they have been done in
terms of the Regulations and after the
approval of the Board.
Case Law Discussed:
[2010 (3) ADJ 241 (DB)], [2009 (10) ADJ
381], [1961 (1) Crl. L.J.773], [AIR 1964 SC
1361], [(2002) 6 SCC 127], [2005 (2) AWC
1191 (FB)], [(2010) 1 SCC 353], [2009 (2)
ADJ 607]

(Delivered by: Justice Ferdino I. Rebello, C.J.)

1. Noticing the conflict of views in
two Division Bench judgments of this
Court in Shishu Pal Singh Vs. State of
U.P. & Others [2010 (3) ADJ 241 (DB)
and another in Special Appeal No.850
of 2010 (State of U.P. & Others Vs.
Jagannath Prasad Gaur and others)
decided on 28.5.2010, in the matter of
transfer
of
Constables
and
Head
Constables and the interpretation of the
U.P. (Civil Police) Constable and Head
Constables
Service
Rules,
2008
(hereinafter referred to as 'the Rules,
2008'), the matter was referred to a Full
Bench by order dated 14th of July,
2010, to answer the following issue:-

"(i). Whether pursuant to framing
of the U.P. (Civil Police) Constable and
Head Constables Service Rules, 2008,
the directions issued by the Supreme
Court in the case of Prakash Singh Vs.
Union of India [2006 (8) SCC 1) in
exercise of power under Article 142 of
the Constitution of India, are no longer
applicable in view of what is set out in
paragraph 31 of the judgment?"

2. In paragraph 31 of Prakash
Singh (supra), the Supreme Court was
pleased to direct as under: "In discharge
of
our
constitutional
duties
and