# Vijay Pratap Singh v. The State Of U.P. & Ors

- **Citation:** (2021) 7 ILRA 439
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-02
- **Case number:** Special Appeal Defective No. 663 of 2018
- **Bench:** Ritu Raj Awasthi, Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-pratap-singh-v-the-state-of-u-p-ors-47193
- **Pages:** 4

## Headnote

A. Service Law - UP Recruitment of
Dependents
of
Government
Servants
(Dying
in
Harness)
Rules,
1974
-
Compassionate appointment - Claim by
dependent of Seasonal Collection Amin
died in harness - Deceased employee was
not given a regular appointment on the
post of collection amin - Held, grant of
certain pay scale to a seasonal collection
amin does not mean that he was given
substantive appointment on the post of
collection amin - Father of petitioner, not
being
a
regular
employee,
was
not
covered
under
the
definition
of
'government servant' as provided under
Rules of 1974 - Full Bench decision in
440 INDIAN LAW REPORTS ALLAHABAD SERIES
Pawan Kumar Yadav's case followed.
(Para 13, 14, 16 and 18)
Special Appeal dismissed. (E-1)
Cases relied on :-

## Text

7 All. Vijay Pratap Singh Vs. The State of U.P. & Ors.
439
respondents filed writ petitions after they
were illegally appointed on nonexistent
posts by the Committees of Management
with prayer for creation of the posts. The
Director was having no corresponding duty
towards the respondent-petitioners for
creation of the posts and, therefore, the writ
petitions, on behalf of the respondentpetitioners with prayer for creation of the
posts, were not maintainable. The writ of
Mandamus, therefore, should not have been
issued on these writ petitions for creation of
the posts and the learned Single Judge has
grossly erred in directing for creation of the
posts.

iii). The payment of salary is a
legal right of a person who validly holds
the post for which the salary is claimed.
Since the appointments of the respondentspetitioners were not in accordance with the
statutory
prescription
and,
their
appointments
were
made
against
nonexistent posts, they had no legal right to
be appointed on such posts. Therefore, no
direction for payment of salary to the
respondent-petitioners could have been
issued. The learned Single Judge has
grossly erred in directing the payment of
salary to the respondent-petitioners, whose
appointments were wholly illegal, null and
void.

iv).
The
appointments
of
the
respondent-petitioners were void ab initio. They
were
appointed
by
the
Committees
of
Management de hors the statutory prescription,
without there being sanctioned posts available.
The Committees of Management had no authority
to make appointments of the respondentpetitioners. Since their appointments were void ab
initio, no legal rights ever accrued on them for
their continuance in service.

36.

In
view
of
aforesaid
discussions, we allow these special appeals
and set-aside the impugned judgment and
orders passed by the learned Single Judge.
However, it is made clear that the
respondents-petitioners shall not be forced
to refund the salary drawn by them in
pursuance of the impugned judgment and
orders passed by the learned Single Judge.
----------
(2021)07ILR A439
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.07.2021

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE DINESH KUMAR SINGH, J.

Special Appeal Defective No. 663 of 2018

Vijay Pratap Singh ...Petitioner
Versus
The State Of U.P. & Ors. ....Respondents

Counsel for the Petitioner:
Sunil Kumar Mishra

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Recruitment of
Dependents
of
Government
Servants
(Dying
in
Harness)
Rules,
1974
-
Compassionate appointment - Claim by
dependent of Seasonal Collection Amin
died in harness - Deceased employee was
not given a regular appointment on the
post of collection amin - Held, grant of
certain pay scale to a seasonal collection
amin does not mean that he was given
substantive appointment on the post of
collection amin - Father of petitioner, not
being
a
regular
employee,
was
not
covered
under
the
definition
of
'government servant' as provided under
Rules of 1974 - Full Bench decision in
440 INDIAN LAW REPORTS ALLAHABAD SERIES
Pawan Kumar Yadav's case followed.
(Para 13, 14, 16 and 18)
Special Appeal dismissed. (E-1)
Cases relied on :-
1. Pawan Kumar Yadav Vs St. of U.P. & ors.;
2011 (1) AWC 1028
(Delivered by Hon'ble Ritu Raj Awasthi, J.
&
Hon'ble Dinesh Kumar Singh, J.)

1. The case is taken up through Video
Conferencing.

2. Heard learned counsel for the
petitioner as well as Mr. Q.H. Rizvi,
learned Additional Chief Standing Counsel
appearing on behalf of the respondents.

3. The special appeal has been filed
with a reported delay of two years, five
months and seventeen days. The objection
to the application for condonation of delay
has been filed by the respondents.

4. We have gone through the affidavit
filed
in
support
of
application
for
condonation of delay and the affidavit filed
in support of objection.

5. The grounds taken in the affidavit
filed
in
support
of
application
for
condonation of delay are sufficient to
condone the delay, as such, we feel it
appropriate to condone the delay.

6. Accordingly, application for
condonation of delay (C.M. Application
No.14267 of 2018) is allowed.

7. Delay in filing special appeal is
hereby condoned.

Order on Memo of Appeal:

8. Heard learned counsel for the
appellant as well as learned Additional
Chief Standing Counsel on behalf of the
respondents on the special appeal.

9. This intra court appeal has been
filed challenging the impugned final order
dated 10.05.2016, passed by learned Single
Judge in Writ Petition No.10079 (SS) of
2016; Vijay Pratap Singh Vs. State of U.P.
and others whereby the learned Single
Judge relying on judgment of Full Bench of
this court in the case of Pawan Kumar
Yadav Vs. State of U.P. and others; 2011
(1) AWC 1028 has dismissed the writ
petition of the petitioner.

10. It is the case of the appellantpetitioner that the father of the appellantpetitioner was a seasonal collection amin.
He had worked intermittently since 1982,
but could not be regularized/regularly
appointed, ultimately he died on 2.12.2013.

11. Learned counsel for the appellantpetitioner submits that the father of
appellant-petitioner had worked against a
substantive post since 1989 till he died in
harness on 2.12.2013 and, as such, the
appellant is entitled to get the benefit of
Uttar Pradesh Recruitment of Dependents
of
Government
Servants
(Dying
in
Harness) Rules, 1974, particularly Rule 2
(a) (iii). It is also submitted that the law
laid down by the Full Bench of this Court
in the case of Pawan Kumar Yadav Vs.
State of U.P. and others (supra) is not
applicable to the case of appellantpetitioner.

12. First of all, it is to be observed
that the services of collection amins are
governed under Uttar Pradesh Collection
Amins' Service Rules, 1974. A complete
procedure has been provided for giving
regular
appointment
to
the
seasonal
7 All. Vijay Pratap Singh Vs. The State of U.P. & Ors.
441
collection amin and all such seasonal
collection amins who fulfill the criteria as
provided under the Rules are considered for
regular appointment on the post of regular
collection amin. The seasonal collection
amins are engaged for a certain period
(season) against the requirement of work.
The seasonal collection amins unless and
until given regular appointment on the post
of collection amins are not to be treated
working against any substantive post hence
not a government servant.

13. It is not the case of the appellantpetitioner that the deceased employee was
given a regular appointment on the post of
collection amin. Learned counsel for the
appellant-petitioner has submitted that the
father of appellant-petitioner had worked
against a substantive post as he was given
the pay scale for the said post of collection
amin and his service book was also
prepared.

14. The grant of certain pay scale to a
seasonal collection amin does not mean
that he was given substantive appointment
on the post of collection amin.

15. So far as the service book is
concerned, that is prepared for the purpose
of considering the seasonal collection amin
for regular appointment on the post of
collection amin. It is not the case that the
seasonal collection amin automatically get
regularized against substantive vacancies
on the post of collection amin. In view of
the procedure prescribed under the relevant
service rules regular appointment is given
to seasonal collection amin after due
selection, as such, we have no difficulty in
coming to the conclusion that the seasonal
collection amin cannot be treated to be
working against a substantive post.

16. So far as the submission of
learned counsel for the appellant-petitioner
that the judgment of Full Bench of this
court in the case of Pawan Kumar Yadav
Vs. State of U.P. and others (supra) is not
applicable to the case of the appellant is
concerned, suffice is to note that the Full
Bench of this Court has categorically held
in para 26 of the judgment that the Uttar
Pradesh Recruitment of Dependents of
Government Servants (Dying in Harness)
Rules, 1974 are not applicable to the
dependents of daily wager or work charge
employee, they shall be applicable only to
the 'government servant' as defined under
Rule 2 of Uttar Pradesh Recruitment of
Dependents
of
Government
Servants
(Dying in Harness) Rules, 1974. The
relevant paragraph of above-said judgment
is reproduced below:

"26. On the aforesaid discussion,
and in view of the law laid down in General
Manager, Uttaranchal Jal Sansthan Vs.
Laxmi Devi (Supra), we answer the
questions posed as follows:-

"1.
A
daily
wager
and
workcharge
employee
employed
in
connection with the affairs of the Uttar
Pradesh, who is not holding any post,
whether substantive or temporary, and is
not appointed in any regular vacancy, even
if he was working for more than 3 years, is
not a 'Government servant' within the
meaning of Rule 2 (a) of U.P. Recruitment
of Dependants of Government Servant
(Dying in Harness) Rules, 1974, and thus
his dependants on his death in harness are
not entitled to compassionate appointment
under these Rules.

2. The judgements in Smt. Pushpa
Lata
Dixit
Vs.
Madhyamik
Shiksha
442 INDIAN LAW REPORTS ALLAHABAD SERIES
Parishad and others, 1991 (18) ALR 591;
Smt. Maya Devi Vs. State of U.P. (Writ
Petition No.24231 of 1998 decided on
2.3.1998); State of U.P. Vs. Maya Devi
(Special Appeal No.409 of 1998); Santosh
Kumar Misra Vs. State of U.P. & Ors.,
2001 (4) ESC (Alld) 1615; and Anju Misra
Vs.
General
Manager,
Kanpur
Jal
Sansthan (2004) 1 UPLBEC 201 giving
benefit of compassionate appointment to
the
dependants
of
daily
wage
and
workcharge employee have not been
correctly decided."

17. The Uttar Pradesh Recruitment of
Dependents
of
Government
Servants
(Dying in Harness) Rules, 1974 defines the
'Government Servant' for the purpose of
appointment of dependents of a deceased
government employee. Rule 2 (a) in this
regard is reproduced below:

"2. Definitions. - In these rules,
unless the context otherwise requires,-

(a) "Government servant" means
a
Government
servant
employed
in
connection with the affairs of Uttar
Pradesh who-

(i)
was
permanent
in
such
employment; or

(ii) though temporary had been
regularly appointed in such employment;
or

(iii)
though
not
regularly
appointed,
had
put
in
three
years'
continuous service in regular vacancy in
such employment.

Explanation.
-
"Regularly
appointed" means appointed in accordance
with
the
procedure
laid
down
for
recruitment to the post or service, as the
case may be;"

18. Since we have come to the
conclusion that the father of the appellantpetitioner was not a regular employee and
he could not have worked against a
substantive post of collection amin, as
such, we are of the considered view that he
was not covered under the definition of
'government servant' as provided under
Uttar Pradesh Recruitment of Dependents
of
Government
Servants
(Dying
in
Harness) Rules, 1974.

19. In view of above, we are of the
considered view that the submissions made
by learned counsel for the appellantpetitioner has no force. There is no
infirmity or illegality in the impugned final
order dated 10.05.2016, passed by learned
Single Judge in Writ Petition No.10079
(SS) of 2016; Vijay Pratap Singh Vs. State
of U.P. and others

20. The special appeal, being devoid
of merit is dismissed.
----------
(2021)07ILR A442
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.07.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Bench No. 1432 of 2015
With
Service Bench No. 1431 of 2015

Dr. Rajendra Bahadur Singh & Ors.
 ...Petitioners
Versus
State of U.P. ...Respondent

Counsel for the Petitioners: