# Vaibhav Singh v. The State of U.P. and others

- **Citation:** (2006) 1 ILRA 559
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-12-23
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vaibhav-singh-v-the-state-of-u-p-and-others-40868
- **Pages:** 4

## Headnote

S.C.

U.P.
Recruitment
of
Dependent
of
Government Servant Dying in Harness
Rules
1974-Compassionate
appointment-father of petitioner died in
harness on 19.11.94 working as subInspector
in
civil
Police-on
28.2.95
mother of the petitioner applied for
compassionate
appointment
as
the
petitioners was 16 years old-in the mean
time mother
also expired-hence
on
25.8.99
petitioner
applied
for
compassionate appointment-rejection on
ground the petitioner is below than 21
years-admittedly
on
the
date
of
application petitioner was more than 18
years-the date on which claim rejectedpetitioner had already attained 21 years
age-held-rejection illegal.

Held: Para 7

The
only
ground
for
refusing
appointment as Sub Inspector is that the
petitioner was less than 21 years of age
but it is apparent that he was in fact
more than 18 years of age when he
applied for compassionate appointment.
In any event, on the date when the claim
560 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
of the petitioner was rejected, he had
already attained the age of 21 years.

## Text

1 All] Vaibhav Singh V. The State of U.P. and others
559
Petitioner replied the same vide letter
dated
15.01.1991
that
no
penal
rent/damages could be charged from him
as the allotment of the said Quarter stood
in his favour. After being re-transferred
from
Varanasi
to
Gorakhpur,
the
petitioner did not apply for allotment of
the said Quarter and continued to enjoy
the possession.

17. The ratio of law laid down by
the Hon'ble Apex Court in the aforesaid
judgment, i.e. Secretary, ONGC Ltd.
(supra) is fully attracted in the facts of the
present case.

18. No Statutory Rule, Executive
Instructions,
Government
Orders
or
Circular has been placed before us
showing that the petitioner could retain
the accommodation in Gorakhpur after
being transferred to Varanasi in spite of
the fact that the respondents had given
him the notice to vacate the same and
intimated that the penal rent shall be
chargeable from him. The petitioner did
not consider it proper to vacate the same.
The plea raised by the learned counsel for
the petitioner that for making recovery of
the penal rent, gratuity cannot be withheld
is not tenable in view of the judgment of
the Hon'ble Supreme Court, referred to
hereinabove.

19. As the petitioner did not vacate
the accommodation in spite of notice and
had drawn the HRA for complete 12
months, even after being transferred from
Gorakhpur to Varanasi, he is not entitled
to seek any equitable and discretionary
relief. Petition does not represent the
special
features,
warranting
any
interference in limited scope of judicial
review.

The Petition is devoid of any merit
and is accordingly dismissed.
Petition dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2005

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 52 Of 2003

Vaibhav Singh

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Avanish Mishra

Counsel for the Respondents:
S.C.

U.P.
Recruitment
of
Dependent
of
Government Servant Dying in Harness
Rules
1974-Compassionate
appointment-father of petitioner died in
harness on 19.11.94 working as subInspector
in
civil
Police-on
28.2.95
mother of the petitioner applied for
compassionate
appointment
as
the
petitioners was 16 years old-in the mean
time mother
also expired-hence
on
25.8.99
petitioner
applied
for
compassionate appointment-rejection on
ground the petitioner is below than 21
years-admittedly
on
the
date
of
application petitioner was more than 18
years-the date on which claim rejectedpetitioner had already attained 21 years
age-held-rejection illegal.

Held: Para 7

The
only
ground
for
refusing
appointment as Sub Inspector is that the
petitioner was less than 21 years of age
but it is apparent that he was in fact
more than 18 years of age when he
applied for compassionate appointment.
In any event, on the date when the claim
560 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
of the petitioner was rejected, he had
already attained the age of 21 years.

(Delivered by Hon'ble D.P. Singh, J.)

1. Heard learned counsel for the
parties.

This petition is directed against an
order dated 4th December, 2002 rejecting
the application of the petitioner for
compassionate
appointment
as
time
barred under the U.P. Recruitment of
Dependent
of
Government
Servants
Dying in Harness Rules, 1974 (hereinafter
referred to as the Rules).

2. The father of the petitioner was a
Sub-Inspector in the civil police when he
died in harness on 19.11.1994. As the
family was in great financial distress, his
mother moved an application dated
28.2.1995
for
appointment
of
the
petitioner on any post. The respondent
no.4 vide his letter dated 6.10.1995
informed her that the petitioner was only
16 years old and, therefore, without
attaining the age of 18 years, he could not
be appointed, but offered appointment to
his mother, but in the meantime, his
mother also expired. After completing his
Bachelor's degree the petitioner applied
on
24/25.8.1999
for
compassionate
appointment, as his family continued to
be in financial distress and was burdened
with a unmarried sister. On the basis of
his application, the office of Deputy
Inspector
General
of
Police
(Establishment) sought a report from the
Superintendent of Police with regard to
compassionate
appointment
of
the
petitioner. The Superintendent of Police
vide his letter dated 8.11.1999 forwarded
the entire relevant documents and report
with his recommendation for appointment
of the petitioner as Sub-Inspector in the
Civil Police on compassionate grounds.
However, he was informed vide letter
dated 7.12.2000 that he had yet not
completed 21 years of age and as such he
could not be appointed as Sub-Inspector,
Civil Police though he was offered
appointment
as
Sub-Inspector
(Ministerial), but vide his letter dated
6.1.2001 the petitioner informed the
respondents that he is awaiting action
from the office of the Chief Minister,
where he had submitted his case for
consideration. By order dated 17.10.2001
the claim of the petitioner was rejected on
the ground that it was raised after five
years and in view of the Rules, no
relaxation could be granted in his case.
This information was conveyed to the
petitioner through a covering letter dated
20th December, 2001. The petitioner
challenged the aforesaid decision through
Writ Petition No.44477 of 2001 and this
Court vide order dated 3.1.2002 directed
the respondents to reconsider the case of
the petitioner with regard to grant of
relaxation in accordance with the Rules.
In
pursuance
thereof,
the
present
impugned order has been passed.

3. Learned counsel for the petitioner
has urged that firstly, his mother in 1995
itself and secondly, the petitioner himself
in August, 1999 had made the application
for compassionate appointment, therefore,
there was no question of grant of any
relaxation in the 5 years period fixed in
the Rules. The argument appears to be
correct.

4. There is no denial either in the
counter affidavit or in the impugned order
that for the first time the mother of the
petitioner had made an application on
28.2.1995 for grant of compassionate
1 All] Vaibhav Singh V. The State of U.P. and others
561
appointment to the petitioner but as he
was a minor he could not be appointed,
however, having attained majority, the
petitioner
himself
had
moved
an
application on 24/25th. August, 1999 and
this application was duly processed but
the claim for appointment as SubInspector in Civil Police was rejected as
he was only twenty years old and the offer
of appointment to the post of SubInspector (Ministerial) was made. It is not
denied that the date of birth of the
petitioner is 6.10.1979 and when his claim
for
appointment
was
rejected
on
7.12.2000 he had already attained the age
of 21 years.

5. Let us examine the validity of the
impugned order, vis a vis, the Rules. The
object of the Rules is to provide
compassionate
appointment
to
one
member of the family whose sole bread
earner dies in harness. It is in the nature of
beneficial legislation and its validity has
been upheld at the altar of Articles 14 and
16 of the Constitution of India. While
interpreting its provisions the object of the
legislation has to be kept in mind. Section
4 mandates that the Rules would have
over
riding
effect
on
the
regular
recruitment rules. For ready reference
Rule 4 is quoted herein below:

"4. Overriding effect of these rules.
_ These rules and any orders issued
thereunder
shall
have
effect
notwithstanding anything to the contrary
contained in any rules, regulations or
orders in force at the commencement of
these rules."

6. Rules 5 and 8 clearly provides for
relaxation of the normal Recruitment
Rules and for relaxation from age. For
ready reference Rules 5 (1) and 8 are
quoted below:

"5. Recruitment of a member of the
family of the deceased.
(1) In case a Government servant
dies in harness after the commencement
of these rules and the spouse of the
deceased Government servant is not
already employed under the Central
Government or a State Government or a
Corporation owned or controlled by the
Central
Government
or
a
State
Government, one member of his family
who is not already employed under the
Central
Government
or
a
State
Government or a Corporation owned or
controlled by the Central Government or
a State Government shall, on making an
application for the purposes, be given a
suitable
employment
in
Government
service on a post except the post which is
within the purview of the Uttar Pradesh
Public Service Commission, in relaxation
of the normal recruitment rules if such
person -
(i) fulfils the educational qualifications
prescribed for the post,
(ii) is
otherwise
qualified
for
Government service, and,
(iii) makes
the
application
for
employment within five years from the
date of the death of the Government
servant:
Provided
that
where
the
State
Government is satisfied that the time limit
fixed for making the application for
employment causes undue hardship in any
particular case, it may dispense with or
relax the requirement as it may consider
necessary for dealing with the case in a
just and equitable manner.

"8. Relaxation from age and other
requirements.
562 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
(1) The candidate seeking appointment
under these rules must not be less
than 18 years at the time of
appointment.

(2) The procedural requirements for
selection; such as written test or
interview by a selection committee
or any other authority, shall be
dispensed with, but it shall be open
to the appointing authority to
interview the candidate in order to
satisfy itself that the candidate will
be able to maintain the minimum
standards of work and efficiency
expected on the post.

7. A joint reading of the three rules
leads to the only conclusion, relevant for
the present facts, that the incumbent ought
to be more than 18 years old and the
minimum age for recruitment in the
normal recruitment rules would stand
relaxed and the incumbent would be
entitled for compassionate appointment. It
need not be emphasized that the rules are
an exception to the normal recruitment
rules. Applying the effect of the aforesaid
rules to the case at hand, it would be
apparent that the impugned order cannot
be sustained. The only ground for
refusing appointment as Sub Inspector is
that the petitioner was less than 21 years
of age but it is apparent that he was in fact
more than 18 years of age when he
applied for compassionate appointment.
In any event, on the date when the claim
of the petitioner was rejected, he had
already attained the age of 21 years.

8. Thus, examining the impugned
order from either of the two angles, it
cannot be sustained.

9.

For
the
reasons
given
hereinabove, this petition succeeds and is
allowed and the impugned order dated
4.12.2002
is
hereby
quashed.
The
respondents are directed to reconsider the
claim of the petitioner in the light of the
observations made hereinabove within a
period of two months and grant him
appointment as Sub Inspector. No order
as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2006

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 25396 of 2002

Yogesh Verma

...Petitioner
Versus
District Judge, Aligarh. ...Respondent

Counsel for the Petitioner:
Sri Vikas Budhwar
Sri Dileep Kumar
Sri Rajeev Gupta

Counsel for the Respondent:
Sri Amit Sthalekar
Sri K.R. Sirohi
S.C.

Constitution of India Art.-226-Principle
of Natural Justice-Termination Orderpassed on the ground-appointment of
illegal
without
advertisement-without
calling
the
name
from
employment
exchange-held-appointment
being
irregular
temporary
appointmentopportunity of hearing not required.

Held: Para 4

It is also well settled that a temporary
employee does not have any right to the
post
and
that
too
one
whose
appointment itself is hit by the principles