# / v. Shailendra Kumar Singh

- **Citation:** (2009) 1 ILRA 254
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-05-02
- **Case number:** Special Appeal (Defective) No. 115 of 2006
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/v-shailendra-kumar-singh-41354
- **Pages:** 3

## Headnote

Rules
1974compossionate appointment-part time
Tube well operator-working for 2 1⁄2
every day-can not be treated as regular
employee-direction for compassionate
appointment given by learned Single
Judge ignoring Division Bench decisionnot sustainable.

Held: Para 8

The
burden
of
proof
that
the
respondent's father was in a regular
employment was on the respondent. In
the facts as stated, we are of the view
that he has not discharged that burden.
This apart the learned Single Judge has
not considered the above Division Bench
judgment which clearly discusses the
law on this point. It is perhaps due to the
fact that since the earlier judgment is
not reported, the same has not been
referred to by the learned Single Judge.
Now the same has been pointed out to
us and we have noted the facts. In our
view, the learned Single Judge has erred
in
granting
the
benefits
to
the
1 All] State of U.P. and another V. Shailendra Kumar Singh
255
respondent arising out of the dying-inharness rules of 1974.
Case law discussed:
Writ Petition No. 51-469 of 2005, Special
Appeal No. 117 of 2000

## Text

254 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
we are of the view that after the
declaration of the election programme,
interference by this Court is wholly
unjustified.
After
the
order
dated
02.05.2008 passed by the Ex. District
Inspector of Schools the issue relating to
voter list had not become final. The order
of the District Inspector of Schools was
subject to further scrutiny and verification
and in pursuance thereof, the process of
verification was started by the Authorized
Controller. Such further proceeding has
not been challenged by the petitionersrespondents rather petitioners-respondents
submitted
before
the
Authorized
Controller for the purpose of verification.
Therefore, it cannot be said that process
started for the finalization of the voter list
after
02.05.2008
was
not
justified.
However, it is always open to the
petitioners-respondents to challenge the
voter list after the election in an
appropriate proceeding, referred herein
above.

17. In the result, Special Appeal is
allowed. The impugned order dated 08th
December, 2008 passed by the learned
Single Judge is set aside and Writ Petition
No.63078 of 2008. Rajeshwar Prasad
Singh and others Versus State of U.P. and
others stand dismissed. The Authorized
Controller is directed to issue election
programme from the date from where the
election process has been stayed within a
period of two weeks by all means and
hold the election on the basis of impugned
voter list within a period of two months
by all means. There shall be no order as to
costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2009

BEFORE
THE HON'BLE H.L. GOKHALE, C.J.
THE HON'BLE DILIP GUPTA, J.

Special Appeal (Defective) No. 115 of
2006

State of U.P and another

...Appellants/Respondents

Versus
Shailendra Kumar Singh ...Respondents

Counsel for the Appellants:
Sri Dr. Y.K. Srivastava
Sri C.B. Yadav
S.C.

Counsel for the Respondent:
Sri Rahul Sripat

Dying
in
Harness
Rules
1974compossionate appointment-part time
Tube well operator-working for 2 1⁄2
every day-can not be treated as regular
employee-direction for compassionate
appointment given by learned Single
Judge ignoring Division Bench decisionnot sustainable.

Held: Para 8

The
burden
of
proof
that
the
respondent's father was in a regular
employment was on the respondent. In
the facts as stated, we are of the view
that he has not discharged that burden.
This apart the learned Single Judge has
not considered the above Division Bench
judgment which clearly discusses the
law on this point. It is perhaps due to the
fact that since the earlier judgment is
not reported, the same has not been
referred to by the learned Single Judge.
Now the same has been pointed out to
us and we have noted the facts. In our
view, the learned Single Judge has erred
in
granting
the
benefits
to
the
1 All] State of U.P. and another V. Shailendra Kumar Singh
255
respondent arising out of the dying-inharness rules of 1974.
Case law discussed:
Writ Petition No. 51-469 of 2005, Special
Appeal No. 117 of 2000

(Delivered by Hon'ble H.L. Gokhale, CJ)

1. Heard Dr. Y.K. Srivastava,
learned Standing Counsel in support of
this appeal. Mr. Rahul Sripat appears for
the respondent.

2. The appellant-State seeks to
challenge the order passed by the learned
Single Judge whereby the learned Single
Judge has allowed the writ petition filed
by the respondent herein by an order
dated 9.11.2005. The respondent had
sought employment on compassionate
ground on the footing that his father was
in a regular employment of the State.

3. There is no dispute that the father
of the respondent was working as a TubeWell Operator. The only question is
whether his employment was part time
employment or regular employment. The
learened Single Judge relied upon a
judgment passed in writ petition of Vijay
Kumar Yadav vs. State of U.P. and
others (Writ Petition No. 51-469 of
2005) decided on 25.7.2005. The learned
Single Judge has quoted from that order
wherein it has been held that since the
petitioner's
father
was
continuously
working for more than three years, he
should be deemed to have worked in a
regular vacancy and therefore, would be
deemed to be treated as Government
servant. On the same analogy, the learned
Single Judge has given the benefit to the
respondent herein since it was claimed
that his father had worked for about 10
years when he died in harness on
21.12.1998.
4. The State has challenged this
judgment and order and has relied upon a
Division Bench judgment in the case of
Stat of U.P. and anoter vs. Smt. Phoola
Devi passed in Special Appeal No. 117
of 2000 decided on 14.7.2000. It is
submitted by Dr. Srivastava, learned
Standing Counsel for the State of U.P.
that this judgment was not considered by
the learned Single Judge. He points out
that the Division Bench in Special Appeal
No. 117 of 2000 examined the relevant
rules and also noted that part time Tubewell Operators were to be called as
NALKOOP SAHAYAKS in pursuance of
Government Order issued on 20.2.1992.
The respondent is calling himself as an
Assistant Tube-well Operator, which is a
translation
of
from
NALKOOP
SAHAYAK. The relevant Government
Order in terms says that all these
NALKOOP SAHAYAKS are supposed to
work for part time and service conditions
will be as given in Annexure-2 thereto.
This scheme lays down that their working
period will be just about 2 1⁄2 hours and
they will be free for their own business
after above working hours though they
will be available in the village concerned.
It was, accordingly, held that the writ
petitioner would not claim compassionate
appointment on the ground that she was
widow of a part time Tube-well Operator
who died in harness.

5. It is submitted by Dr. Srivastava,
learned
Standing
Counsel
that
the
respondent's father was not in a regular
employment and therefore, could not get
any
benefit
of
the
rule
providing
employment to a person under dying in
harness scheme.

6. Mr. Rahul Sripat, learned counsel
for the respondent, on the other hand,
256 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
points out that in the counter affidavit
before the learned Single Judge, the
appellants had accepted that father of the
respondent was being paid salary like
regular employees. He has relied upon
paragraph 12 of the counter affidavit filed
by the State before the learned Single
Judge, which mentions that "The father of
the petitioner was being paid salary like
regular employee pursuant to order of this
Hon'ble Court." Thus, it is clear that
pursuant to an order passed in some other
proceedings, the father of the respondent
was being paid regular salary. This cannot
take the case of the respondent any
further.

7. Mr. Rahul Sripat could not deny
that the appointment order of respondent's
father specifically stated that he was a
part time tube-well operator. He does not
have any document which can show that
the said appointment was subsequently
converted into a regular appointment. The
appointment order further shows that parttime Tube-well Operators were appointed
on a limited salary of Rs.299/-. There is
no document showing that the salary was
revised any time. The only thing which is
relied upon, is an averment in the counter
affidavit filed by the State which has been
referred to above and which states that in
view of order of the Court, higher salary
was being paid to the respondent's father.

8. The burden of proof that the
respondent's father was in a regular
employment was on the respondent. In the
facts as stated, we are of the view that he
has not discharged that burden. This apart
the
learned
Single
Judge
has
not
considered the above Division Bench
judgment which clearly discusses the law
on this point. It is perhaps due to the fact
that since the earlier judgment is not
reported, the same has not been referred
to by the learned Single Judge. Now the
same has been pointed out to us and we
have noted the facts. In our view, the
learned Single Judge has erred in granting
the benefits to the respondent arising out
of the dying-in-harness rules of 1974.

9. In the circumstances, the appeal is
allowed. The order of the learned Single
Judge is set aside and the writ petition is
dismissed. There is no order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2009

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No. 1868 of 2008

Registrar, Chhatrapati Shahuji Maharaj
University Kanpur
 ...Appellant

Versus
Vinay Gupta and another ...Respondents

Counsel for the Appellant:
Sri Neeraj Tiwari

Counsel for the Respondents:
Sri S.K. Srivastava

Constitution of India Art. 226-Promisory
Estappel Appeal-Admission in 3 years
L.L.B. course-circular 19.9.1997 provides
40%
marks
in
graduation
where
admission based on entrance test and
45% where direct admission-without
entrance test-petitioner secured 35th
position in merit list but admission
refused-held-proper-university
never
allowed
to
pursue
the
course-No
question of promissory estoppels.

Held: Para 23