# Vimal Kumar v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 1022
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-07
- **Case number:** Writ-A No. 8789 of 2021
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vimal-kumar-v-state-of-u-p-ors-46451
- **Pages:** 6

## Headnote

A. Service Law - Compassionate Appointment -
Pension - U.P. Government Servant Dying-inHarness Rule, 1974 - Rules 4 & 5 - U.P.
Procedure for Direct Recruitment for Group "C"
Posts (Outside the Purview of Uttar Pradesh
Public Service Commission) Rules, 1998 - Rule
5(4)(e) - Once the family member of the
deceased
employee
has
obtained
compassionate appointment, his right to be
considered, on a subsequent occasion upon
11 All. Vimal Kumar Vs. State of U.P. & Ors.
1023
termination, for appointment under the same
Rules would not entitle such a person to fresh
appointment. (Para 20)

The purpose of the Rules 1974, for compassionate
appointment is to tide over the financial hardship
befallen upon the family on the sudden demise of the
bread earner. On exhaustion of the right upon
appointment under Rules 1974, it is not open
to the petitioner to turn around and say that he
be granted a lower post. Petitioner with all eyes
open had accepted the appointment on a Class III
post and was fully aware that he would have to pass
the type test. On having failed to acquire the
minimum prescribed type speed, it is not open for the
petitioner to turn around and seek a fresh
appointment on a lower post.

The claim for compassionate appointment on
having
being
exhausted
on
appointment
cannot be re-agitated on termination or for
that matter on acquiring a higher qualification.
The contention of the petitioner if accepted would be
violative of Article 14/16 of the Constitution of
India. Such an appointment at this stage, in the
given
facts,
would
tantamount
to
backdoor
appointment bypassing the recruitment rules. (Para
20, 21)

B. Petitioner failed to point out any illegality,
infirmity or jurisdictional error.

Writ petition dismissed. (E-4)

Precedent relied upon by petitioner:

## Text

1022 INDIAN LAW REPORTS ALLAHABAD SERIES
governed by the new set of Rules i.e. the
Revenue Inspector Service Rules, 2014 as
superseded by the Uttar Pradesh Subordinate
Revenue Executive (Rajasva Nirikshak) Rules
2017 notified by Notification dated 17.10.2017.

16. The impugned clause (b) of sub Rule 2 of
Rule 5 of the Rules 2003 as amended by the 2nd
amendment Rules 2014 is neither discriminatory
nor it violates any of the fundamental rights of the
petitioners and instead it protects the promotion
opportunity of the petitioners who were originally
and
substantially
appointed
as
Assistant
Registrar/Registrar Kanungo/Land Record clerks.
The promotion quota of 9% as was originally
provided for them for the promotion to the post of
Naib Tehsildar, has been still retained by the
impugned clause (b) of sub Rule 2 of Rule 5 of the
Service Rules 2003 as amended by the 2nd
amendment by the Rules 2014.

17. Neither there is any allegation in the
writ petition nor it has been argued by learned
counsel for the petitioners that the impugned
Rules are beyond Rule making power or
legislative competence of the State. Therefore,
both the well settled principles for challenging
the constitutional validity of a statutory
provisions,
namely,
lack
of
legislative
competence and infringement of any of the
fundamental
rights
guaranteed
under
the
Constitution of India; are totally absent in the
present set of facts.

18. It is well settled that there is always
presumption in favour of the constitutional
validity of a statutory provisions.

19. Considering the entire facts and
circumstance and the provisions of the Rule
5(2)(b) of Service Rules, 2003 under challenge
and the other relevant Rules, we do not find any
unconstitutionality in the impugned provisions.
The writ petition is wholly devoid of merit and,
therefore, deserves to be dismissed.

20. For all the reasons aforestated, the writ
petition is dismissed. The provisions of Rule
5(2)(b) of Service Rules, 2003 is held to be
valid.

21. After this judgment was dictated in
open court, learned counsel for the petitioner
states that the consideration of the petitioners for
promotion are being held up by the State
Government on one pretext or the other.

22. Be as it may, we feel it appropriate to
observe that the State Government shall proceed
forthwith to consider for promotion of Revenue
Inspectors to the post of Naib Tehsildar, in
accordance with law, provided there is no legal
impediment.
----------
(2021)12ILR A1022
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.10.2021

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ-A No. 8789 of 2021

Vimal Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Santosh Kumar Yadav

Counsel for the Respondents:
C.S.C.

A. Service Law - Compassionate Appointment -
Pension - U.P. Government Servant Dying-inHarness Rule, 1974 - Rules 4 & 5 - U.P.
Procedure for Direct Recruitment for Group "C"
Posts (Outside the Purview of Uttar Pradesh
Public Service Commission) Rules, 1998 - Rule
5(4)(e) - Once the family member of the
deceased
employee
has
obtained
compassionate appointment, his right to be
considered, on a subsequent occasion upon
11 All. Vimal Kumar Vs. State of U.P. & Ors.
1023
termination, for appointment under the same
Rules would not entitle such a person to fresh
appointment. (Para 20)

The purpose of the Rules 1974, for compassionate
appointment is to tide over the financial hardship
befallen upon the family on the sudden demise of the
bread earner. On exhaustion of the right upon
appointment under Rules 1974, it is not open
to the petitioner to turn around and say that he
be granted a lower post. Petitioner with all eyes
open had accepted the appointment on a Class III
post and was fully aware that he would have to pass
the type test. On having failed to acquire the
minimum prescribed type speed, it is not open for the
petitioner to turn around and seek a fresh
appointment on a lower post.

The claim for compassionate appointment on
having
being
exhausted
on
appointment
cannot be re-agitated on termination or for
that matter on acquiring a higher qualification.
The contention of the petitioner if accepted would be
violative of Article 14/16 of the Constitution of
India. Such an appointment at this stage, in the
given
facts,
would
tantamount
to
backdoor
appointment bypassing the recruitment rules. (Para
20, 21)

B. Petitioner failed to point out any illegality,
infirmity or jurisdictional error.

Writ petition dismissed. (E-4)

Precedent relied upon by petitioner:

1. Mukul Sagar Vs St. of U.P. & ors., Writ-A No. 12737
of 2018, decided on 04.07.2018 (Para 8)

2. Smt. Shaheen Siddiqui Vs St. of U.P. & ors., Writ-A
No. 43351 of 2019, decided on 11.09.2014 (Para 8)

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Shri Siddharth Khare, learned
counsel appearing for the petitioner and learned
Standing Counsel for the State-respondents.

2. Pursuant to order dated 16 September
2021 learned Standing Counsel has received
written instructions and submits that the reasons
assigned in the impugned order has been
reiterated by the second respondent.

3. On the consent of the parties, the matter
is being heard finally at the admission stage
without calling for the counter affidavit.

4.

Petitioner
came
to
be
given
compassionate appointment on 14 June 2018 on
the post of Assistant Clerk, a Class-III post.
Petitioner is having graduate degree and CCC
certificate from DOEACC.

5. It was clearly provided in the
appointment letter that petitioner would have to
obtain computer knowledge/typing proficiency
as mandated under the service rules within the
period of probation.

6. Petitioner joined duties on the post of
Junior Assistant in the Collectorate Sambhal.
Petitioner was called upon to take the typing test
of on 24 June 2019, however, petitioner sought
further time to practice and gain typing speed.
Thereafter, petitioner appeared on 31 January
2020 in the typing test, but failed to achieve type
speed of 25 words per minute. Petitioner again
was given an opportunity to improve his typing
proficiency and skill but he again on 12 June
2020 failed to achieve the requisite speed in the
typing test. The services of the petitioner came
to be dispensed with by the second respondent,
District Magistrate, Sambhal, by passing the
impugned order dated 15 June 2020. The
consequential order dated 15 July 2020 came to
be passed by the Tehsildar, Tehsil Gunnaur,
District Sambhal, terminating the services of the
petitioner.
Aggrieved,
petitioner
raised
a
challenge to the afore-noted orders in a petition
being Writ Petition No. 7998 of 2020. The writ
petition came to be disposed of by passing the
judgment and order dated 5 March 2021,
directing the respondent-authorities to consider
the
representation
of
the
petitioner
for
compassionate appointment on a lower post. The
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
relevant portion of the order for the purposes of
the case is extracted:

"21. There is no infirmity in the impugned
order terminating the services of the petitioner
after grant of one month notice period. The
impugned
orders
dated
15.06.2020
and
19.07.2020 are not liable to be interfered with
and the prayer for quashment of the impugned
orders is declined.

22. xxx

23. xxx

24. In the wake of the aforesaid
submissions this Court feels that eligibility for
appointment on lower post after the services
of the petitioner have been terminated, is a
matter which may be considered in the first
instance by the competent authority.

25. Without going into the merits of the
submissions, the matter is remitted to the
respondent
no.
2,
District
Magistrate,
Sambhal. The respondent no. 2, District
Magistrate,
Sambhal
shall
decide
the
representation
of
the
petitioner
for
appointment on a lower post under the U.P.
Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974, in
accordance with law within a period of four
months from the date of production of a
computer generated copy of this order,
downloaded from the official website of the
High Court Allahabad.

26. The computer generated copy of such
order be self attested by the petitioners (party
concerned) along with a self attested identity
proof of the said person (preferably Aadhar
Card) mentioning the mobile number to which
the
said
Aadhar
Card is linked. The
Authority/Official shall verify the authenticity
of such computerized copy of the order from
the official website of High Court Allahabad
and shall make a declaration of such
verification in writing.

27. The writ petition is disposed of finally
with the above directions."

7. In compliance thereof, by the impugned
order dated 24 May 2021, claim of the petitioner
for appointment on the lower post under
compassionate appointment rules came to be
rejected on the plea that the claim of the
incumbent for compassionate appointment is
considered once under the Dying-in-Harness
Rules, there is no provision under the rules for
appointing the incumbent on a lower post on
having
failed
to
acquire
the
minimum
qualification/proficiency prescribed under the
rules for the Class-III post.

8. It is urged by learned counsel for the
petitioner that petitioner was not a confirmed
employee, therefore, petitioner's case could be
considered for appointment on a lower post in
the event of the petitioner having not qualified
the type test; in the event of the petitioner not
being considered for a lower post, it would
tantamount to perpetuate the financial hardship
of
the
family;
petitioner's
claim
for
compassionate
appointment
still
subsists.
Reliance has been placed on the orders passed
by this Court in Mukul Sagar Vs. State of U.P.
and others1 and Smt. Shaheen Siddiqui Vs.
State of U.P. and others2.

9. In other words, it is urged that petitioner
is entitled to appointment on a lower post on
having not successfully qualifying the requisite
proficiency test for the post on which the
petitioner came to be appointed.

10. Per contra, the learned standing
counsel submits that petitioner came to be
granted compassionate appointment under the
Dying-in-Harness Rules, on Class-III post as per
the qualification of the petitioner. The service
rules mandate that the incumbent apart from
having minimum educational qualification is to
pass type test. Accordingly, petitioner was
appointed on a condition that he would be
required to appear and pass the type test within
the period of probation. Services of the
11 All. Vimal Kumar Vs. State of U.P. & Ors.
1025
petitioner came to be dispensed with as
petitioner failed to qualify the type test despite
several
opportunities.
The
claim
for
compassionate appointment stood exhausted on
being appointed. Services of the petitioner came
to be dispensed with on the terms and conditions
of appointment. It is not permissible under the
rules that petitioner can seek a fresh appointment
on compassionate ground.

11.

Rival
submissions
fall
for
consideration.

12. The sole question for determination is,
as to whether, petitioner can be reappointed on
compassionate ground on a lower post on having
failed to acquire the essential qualification
prescribed for Class-III post under the service
rules.

13. Facts inter-se parties are not in dispute.

14. Petitioner came to be appointed Clerk
(Class-III) on compassionate ground under the
provision of U.P. Government Servant Dying-inHarness Rule, 19743, on the death of the deceased
employee. It is not being disputed that under the
rules governing recruitment on Class-III post,
petitioner is required to pass type test. Petitioner
came to appointed on 14 June 2018, subject to
condition that petitioner would obtain/qualify the
typing test. It is admitted that petitioner was given
several opportunities but petitioner failed to qualify
the typing test at 25 words per minute.
Accordingly, services of the petitioner came to be
terminated. Petitioner challenged the termination
order before this Court in writ jurisdiction. The
Court declined to interfere with the impugned
order dispensing with the service of the petitioner
on having not fulfilled the conditions of
appointment as mandated under the service rules,
however, directed the respondents to consider, as
to whether, petitioner can be appointed on a lower
post. Pursuant to the directions of this Court, the
impugned order 24 May 2021, has been passed.
The second respondent has noted in the impugned
order that since petitioner failed to qualify the type
test, accordingly, services of the petitioner came to
be terminated as per the terms and conditions of
the appointment, on having not acquired the
minimum essential qualification required for
appointment on Class-III post.

15. It is further noted in the impugned order
that there is no provision under Rules, 1974, to
reconsider the appointment of the incumbent
claiming fresh appointment on a lower post after
termination.

16. Rule 4 envisages that the Rules, 1974,
and the order issued thereunder of having effect
notwithstanding
anything
to
the
contrary
contained in any rules, regulations and order in
force. Rule 5 provides for recruitment of a
member of the family of the deceased. The rule
categorically
mandates
that
in
case
a
government servant dies in harness and spouse
of the deceased government servant is not
already employed under the government, Central
and/or State, one member of the family, who is
not already employed shall be given a suitable
employment in government service on a post in
relaxation of the normal recruitment rules, if,
such
person
(i.)
fulfils
the
educational
qualification prescribed for the post; (ii) is
otherwise qualified for government service.

17. Rule 5 came to be amended/substituted
vide notification dated 22 January 2014,
wherein, it was specifically provided that if the
post on which a person is appointed under the
rules require typing as the essential qualification,
then in that event, the person would be
appointed under Rules, 1974, on a condition that
within one year from the date of appointment the
appointee will have to obtain type speed at 25
words per minute, failing which, his services
will be dispensed with. Rule 5 reads thus:

"5. e`rd ds dqVqEc ds fdlh lnL; dh HkrhZ +&
1026 INDIAN LAW REPORTS ALLAHABAD SERIES

1+ &&&&

1⁄4i1⁄2 in ds fy, fofgr 'kSf{kd vgZrk,a iwjh djrk gks %

ijUrq ;g fd ;fn fu;qfDr fdlh ,sls in ij dh tkrh
gS ftlds fy, Vad.k dks ,d vfuok;Z vgZrk ds :i esa
fofgr fd;k x;k gS vkSj e`r ljdkjh lsod ds vkfJr ds
ikl Vad.k esa visf{kr izoh.krk ugha gS] rks mls bl 'krZ ds
v/khu fu;qDr fd;k tk,xk fd og ,d o"kZ ds Hkhrj gh
Vad.k esa 25 'kCn izfr feuV dh visf{kr xfr izkIr dj ysxk
vkSj ;fn og ,slk djus esa foQy jgrk gS rks mldh lkekU;
okf"kZd osru & o`f) jksd yh tk,xh] vkSj Vad.k esa visf{kr
xfr izkIr djus ds fy, mls vxzsrj ,d o"kZ dh vof/k iznku
dh tk,xh] vkSj ;fn c<+k;h x;h vof/k esa Hkh og Vad.k esa
visf{kr xfr izkIr djrs esa foQy jgrk gS rks mldh lsok;sa
lekIr dj nh tk;saxh]

ijUrq ;g vkSj fd fdlh ,sls in ij fu;qfDr fd;s
tkus dh n'kk esa] ftlds fy, dEi;wVj izpkyu vkSj Vad.k
,d vfuok;Z vgZrk ds :i esa fofgr dh x;h gS vkSj e`rd
ljdkjh lsod dk vkfJr dEI;wVj izpkyu vkSj Vad.k esa
visf{kr izoh.krk ugha j[krk gS] rks mls bl 'krZ ds v/khu
jgrs gq, fu;qDr dj fy;k tk;sxk fd og ,d o"kZ ds Hkhrj
gh dEi;wVj izpkyu esa Mh0vks0bZ0,0lh0lh0 lkslk;Vh +}kjk
iznRr ^^lh0lh0lh0** izek.k i= ;k ljdkj }kjk mlds
led{k ekU;rk izkIr fdlh izek.k&i= ds lkFk&lkFk Vad.k
esa 25 'kCn izfr feuV dh visf{kr xfr vftZr dj ysxk] vkSj
;fn og ,slk djus esa foQy jgrk gS rks mldh lkekU;
okf"kZd osru&o`f) jksd yh tk;sxh vkSj dEI;wVj izpkyu esa
visf{kr izek.k&i= vkSj Vad.k esa visf{kr xfr vftZr djus
ds fy, mls ,d o"kZ dh vxzsrj vof/k iznku dh tk;sxh]
vkSj ;fn c<+k;h x;h vof/k esa Hkh og Vad.k esa visf{kr xfr
izkIr djrs esa foQy jgrk gS rks mldh lsok;sa lekIr dj nh
tk;saxh।
(ii) ....
(iii)...."

18. On specific query, learned counsel
for the petitioner does not dispute that the
service rules governing the appointment on
Class III posts mandates typing at a prescribed
speed as an essential qualification. It is also
not being disputed that petitioner came to be
appointed on a Class III post under Rules,
1974, on a condition that he would require to
obtain the typing speed within the period
noted in the appointment letter. It is also not
being disputed that petitioner was asked to
appear for the typing test on four occasions
and petitioner was unable to obtain/qualify the
prescribed
speed
on
two
occasions,
consequently, the services of the petitioner
came to be terminated.

19. Rule 5(4)(e) of the U.P. Procedure
for Direct Recruitment for Group "C" Posts
(Outside the Purview of Uttar Pradesh Public
Service Commission) Rules, 1998 reads thus:

"5. Procedure for direct recruitment

(1) .....

x

x

(4)

x

x

x

x

(e) In the case of candidates to be
selected for any post for which typewriting or
shorthand and typewriting has been prescribed
as an essential qualification, there shall be a
test
of
typewriting
or
shorthand
and
typewriting, as the case may be......"

20. The submission of the learned counsel
for the petitioner that petitioner on having not
fulfilled the essential qualification mandated for a
Class III post, should now be offered a lower post
under Rules 1974, is misconceived. The purpose of
the Rules 1974, for compassionate appointment is
to tied over the financial hardship befallen upon
the family on the sudden demise of the bread
earner. Once the family member of the deceased
employee
has
obtained
compassionate
appointment, his right to be considered, on a
subsequent
occasion
upon
termination,
for
appointment under the same Rules would not
entitle such a person to fresh appointment. On
exhaustion of the right upon appointment under
Rules 1974, it is not open to the petitioner to turn
around and say that he be granted a lower post.
Petitioner with all eyes open had accepted the
appointment on a Class III post and was fully
aware that he would have to pass the type test. On
having failed to acquire the minimum prescribed
11 All. Karunesh Tripathi Vs. State of U.P. & Ors.
1027
type speed, it is not open for the petitioner to turn
around and seek a fresh appointment on a lower
post. The claim for compassionate appointment on
having being exhausted on appointment cannot be
re-agitated on termination or for that matter on
acquiring a higher qualification. The contention of
the petitioner if accepted would be violative of
Article 14/16 of the Constitution of India. Such an
appointment at this stage, in the given facts, would
tantamount to backdoor appointment bypassing the
recruitment rules.

21. Petitioner cannot claim reversion or fresh
appointment on a post which he had not held at the
time of appointment under Rules, 1974. Petitioner
having not fulfilled the specific condition of
appointment, this Court had declined to interfere
with the impugned order terminating the services
of the petitioner as no illegality or infirmity could
be pointed out. Petitioner cannot seek appointment
on mercy and/or sympathy. Such an appointment
was rightly not granted by the State-respondents.

22. Learned counsel for the petitioner failed
to
point
out
any
illegality,
infirmity
or
jurisdictional error.

23. The petition being devoid of merit is,
accordingly, dismissed.
----------

(2021)12ILR A1027
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 8780 of 2021

Karunesh Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sujeet Kumar, Ms. Chhaya Gupta, Sri Ashok Khare

Counsel for the Respondents:
C.S.C.

A. Service Law - Suspension - Indian Penal
Code -1860 - Sections 409, 420 & 468.

1) Issue of delay in submitting the charge
sheet - Ordinarily, when there is an accusation
of defalcation of the monies, the delinquent
employees have to be kept away from the
establishment till the charges are finally
disposed of. Whether the charges are baseless,
malicious or vindictive and are framed only to keep
the individual concerned out of the employment is a
different matter. But even in such a case, no
conclusion can be arrived at without examining the
entire record in question and hence it is always
advisable to allow disciplinary proceedings to continue
unhindered. (Para 19, 21)

Where such a huge amount of money has been
defalcated by several officers in collusion with
Directors/Managers
and
Principals
of
several
institutions; naturally, the investigation would take
time to ascertain the link of the flow of money into
hands of several persons, who colluded with each
other to misappropriate such a huge amount. (Para
24)

In the case in hand, only seven months have elapsed,
and considering the gravity of the charge, this Court
finds that the principles elucidated by the Apex Court
in the cases of U.P. Rajya Krishi Utpadan Mandi
Parishad (infra) and Allahabad Bank & anr. (infra) are
applicable, and delay in submitting the charge sheet
cannot be ground to interfere in the suspension
order. (Para 25)

2)
This
Court
expressed
its
reservation
regarding practice of keeping an employee
under suspension for an indeterminate period -
Suspension
order should
not
be
for
an
indeterminate
period
as
it
amounts
to
harassment of an employee and employee has
to endure the scorn of the society and would
injure his reputation in the society and his
family. Court observed that considering the nature of
charge in the instant case, one and half year would
be sufficient time within which the respondents
should issue charge sheet. If for any reason, the
respondents are not able to comply with that, it is