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

- **Citation:** (2022) 4 ILRA 363
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-09
- **Case number:** Special Appeal No. 153 of 2022
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vimal-kumar-v-state-of-u-p-ors-48331
- **Pages:** 4

## Headnote

A. Service Law - UP Recruitment of
Dependents
of
Government
Servants
Dying
in
Harness
Rules,
1974
-
Compassionate
appointment
-
Appointment on Class III post - Failure in
typing test - Effect - Service dispensed
with due to failure in test - Validity
challenged - Held, the object is to provide
support to the family of the deceased
employee who dies during service. In
case, service of an employee appointed on
compassionate basis is dispensed with
only because he had not been able to pass
the typing test and if there are posts
available in the lower category, his case
should be examined for appointment to
that category. (Para 5 and 6)
B. Interpretation of statute - Purposive
construction - The provision of Rules have
to be given a purposive meaning which
has nexus with the object sought to be
achieved. (Para 6)
Special Appeal allowed. (E-1)

## Text

4 All. Vimal Kumar Vs. State of U.P. & Ors.
363

32. Generally, admissions of fact
made by a counsel are binding upon their
principals as long as they are unequivocal;
where, however, doubt exists as to a purported
admission, the court should be wary to accept
such admissions until and unless the counsel or
the advocate is authorised by his principal to
make such admissions. Furthermore, a client is
not bound by a statement or admission which
he or his lawyer was not authorised to make. A
lawyer generally has no implied or apparent
authority to make an admission or statement
which would directly surrender or conclude the
substantial legal rights of the client unless such
an admission or statement is clearly a proper
step in accomplishing the purpose for which the
lawyer was employed. We hasten to add neither
the client nor the court is bound by the lawyer's
statements or admissions as to matters of law or
legal conclusions? "

39. Having noticed the facts and the law
in the preceding paragraphs now, in the
aforesaid backdrop, if the decisions relied upon
by the learned Senior Counsel for the appellant
are considered, it would indicate that in the case
of Balraj Deo (supra), the issue before the
Division Bench was that the contemner was
convicted by the Court and he filed a recall
application instead of filing an appeal in terms
of Section 19 of the Contempts of Court Act. It
is in the aforesaid backdrop that the said recall
application was rejected and thus on the face of
it, the said decision does not come to the rescue
of the appellant and is clearly distinguishable.

40. Durga Nagpal's case (supra) was a
case where after the contempt proceedings were
dropped and the application for modification of
the final judgment was moved and in the
aforesaid backdrop, it was held that the
contempt Judge did not have the power to
revive its own order, however, the facts of the
said case are also at variance to the case at hand,
hence, the said decision also does not help the
appellant especially when in the present case
the element of fraud and misrepresentation is
involved which in turn activates the maxim
"Actus Curiae neminem gravabit".

41. In Mahavir Prasad's case (Supra), it
would indicate that in the said case, an
application for review/recall was moved which
was rejected by the Central Administrative
Tribunal in default. This order was assailed
before the High Court in writ jurisdiction which
was quashed and the contempt petition was
restored to its original number directing the
Tribunal to decide the same after bringing the
successors in the office on record, thus, the facts
of the case are quite different to the facts of the
case, consequently, the said decision does not
apply to the instant case.

42. In light of the aforesaid detailed
discussions, this Court has no hesitation to hold
that the impugned order dated 02.12.2021 does
not suffer from any error which may persuade
this Court to interfere, accordingly, the Special
Appeal is dismissed.

43. In the facts and circumstances, there
shall be no order as to costs.
----------
(2022)04ILR A363
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.03.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal No. 153 of 2022

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

Counsel for the Appellant:
Mr. Dhirendra Kumar Singh Rathor
364 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C.

A. Service Law - UP Recruitment of
Dependents
of
Government
Servants
Dying
in
Harness
Rules,
1974
-
Compassionate
appointment
-
Appointment on Class III post - Failure in
typing test - Effect - Service dispensed
with due to failure in test - Validity
challenged - Held, the object is to provide
support to the family of the deceased
employee who dies during service. In
case, service of an employee appointed on
compassionate basis is dispensed with
only because he had not been able to pass
the typing test and if there are posts
available in the lower category, his case
should be examined for appointment to
that category. (Para 5 and 6)
B. Interpretation of statute - Purposive
construction - The provision of Rules have
to be given a purposive meaning which
has nexus with the object sought to be
achieved. (Para 6)
Special Appeal allowed. (E-1)

(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble J.J. Munir, J.)

1. The order dated October 7, 2021
passed by the learned Single Judge has
been impugned by the writ petitioner by
filing the present intra-Court appeal. On
account of death of his father, who was a
government servant and expired during
service on August 24, 2016, the petitionerappellant, being eligible for Class-III post
having qualifications prescribed therefor,
was appointed as Junior Clerk vide order
dated June 14, 2018. The appointment was
in terms of U.P. Recruitment of Dependents
of Government Servants Dying in Harness
Rules, 1974 (hereinafter referred to as
"1974 Rules"). In terms of the Rules and
requirement for the post on which he was
appointed on probation, the appellant was
to clear the typing test with a speed of 25
words per minute within one year from the
date of appointment. In case of failure,
another chance was to be given. This fact is
undisputed that the appellant appeared in
the
typing
test
twice,
but
failed.
Considering the provisions of Rule 5 of
1974 Rules, the services of the petitioner
were dispensed with vide order dated June
15, 2020, which was challenged by the
appellant by filing the writ petition. The
writ petition was dismissed.

2. The arguments raised by learned
counsel for the appellant is that in case the
appellant was not able to pass the typing
test and was not eligible to continue on
Class-III post, he should have been offered
a Class-IV post. The object of providing
compassionate appointment in terms of
1974 Rules is to take care of financial crisis
of the family where the bread earner dies
while in service. His father died only in the
year 2016. There is no other earning
member in the family even now.

3. On the other hand, learned counsel
for the State submitted that the services of
the appellant were dispensed with strictly
keeping in view the provisions of Rule-5 of
1974 Rules, which clearly provides that on
failure to pass the typing test after giving
two opportunities, the services of the
employee,
who
was
appointed
on
compassionate basis, will be dispensed
with. Hence, there is no error in the order
passed by learned Single Judge.

4. Heard learned counsel for the
parties and perused the paper-book.

5. The fact that father of the appellant
was a government servant and expired on
4 All. Vimal Kumar Vs. State of U.P. & Ors.
365
August 24, 2016 is not in dispute. In terms
of 1974 Rules, the appellant was offered
the appointment on compassionate basis as
Junior Clerk, a Class-III post. He was a
Graduate and having C.C.C. certificate
from DOEACC. In terms of the provisions
applicable for Class-III post, a candidate is
required to pass the typing test with speed
of 25 words per minute. Rule 5 of 1974
Rules provides for concession to be given
to the persons appointed on compassionate
basis to enable them to pass the aforesaid
typing test within one year and on failure,
another chance is to be granted in the next
year. The fact remains that the appellant
failed to pass that test on account of which
his services were dispensed with.

6. If we go strictly by the language of
the Rules, it clearly provides that on failure
to pass the typing test within the extended
period, the services of the employee shall
be dispensed with. However, the fact
remains that it is a case in which the
petitioner was offered appointment on
compassionate basis on account of death of
the bread earner in the family. If his
services are dispensed with, the family may
again suffer financial crisis. The provision
of Rules have to be given a purposive
meaning which has nexus with the object
sought to be achieved. The object is to
provide support to the family of the
deceased employee who dies during
service. In case, service of an employee
appointed on compassionate basis is
dispensed with only because he had not
been able to pass the typing test and if there
are posts available in the lower category,
his
case
should
be
examined
for
appointment to that category. It will not be
a case of reversion of an employee from the
post on which he was appointed, as
reversion to a post of lower category than
the post on which an employee is
appointed, is not permissible in law. In
case, claim of such an applicant is found to
be in terms of the Rules, he can be offered
fresh appointment on the lower post for
which he is eligible.

7. In the case in hand, the aforesaid
exercise needs to be done by the competent
authority within a period of four months
from the date of receipt of copy of this
order.

8. In view of the aforesaid discussion,
in our opinion the judgment of learned
Single Judge deserves to be set aside. The
respondents are directed to consider the
case of the appellant for appointment on a
Class IV post on compassionate basis,
within four months of receipt of copy of
this order.

9. Ordered accordingly.

10. Before we part with the order, we
need to notice two aspects. One, there is a
need to re-visit the language of 1974 Rules.
The competent authority in the government
may
consider
its
re-drafting.
The
appointment of a candidate, who is not
eligible on the date of appointment, is
bringing this kind of result and the issue of
entitlement
for
appointment
on
compassionate basis.

11. Secondly, at the time of hearing of
the present appeal, learned counsel for the
appellant had referred to the amendment
carried out in 1974 Rules vide Notification
dated January 22, 2014. To have a look on
the 1974 Rules, we have perused the U.P.
Judicial Services Manual, 2016 Edn.
published by Hind Publishing House,
Allahabad, but unfortunately the aforesaid
amendment is not printed. Such kind of
publications are likely to lead to wrong
366 INDIAN LAW REPORTS ALLAHABAD SERIES
decision by the Court as the counsel and
the Court may be misled.

12. Let notice be issued to the Hind
Publishing House, 1, Mahatma Gandhi
Marg, Allahabad- 211001 to show cause as
to what action should be taken against it for
wrong publication of the Rules as on date
when the book was published.

13. The appeal is allowed.However, to
deal with the notice issued, the matter shall
be listed in Court on May 4, 2022. (J.J.
Munir, J.) (Rajesh Bindal, C.J.) Allahabad
09.03.2022 Manish Himwan/P.Sri. Whether
the order is speaking : Yes/No Whether the
order is reportable : Yes/No
----------
(2022)04ILR A366
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.03.2022

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ A No. 848 of 2014

Amarjeet Yadav ...Petitioner
Versus
State of U.P & Ors. ...Respondents

Counsel for the Petitioner:
B.N. Sirswal, Harish Chandra Yadav

Counsel for the Respondents:
C.S.C.

A. Service Law - Minimum Wages Act,
1948 - Part I, Sections 2(g) & 27 -
Employment as the part-time sweeper in
government hospital -Applicability of
the
Act
of
1948
-
Scheduled
employment, described - Held, since
sweeping
as
an
employment
finds
mention under the list of scheduled
employment, therefore, the employment
as a sweeper falls under the purview of
Scheduled
Employment
-
Direction
issued to pay minimum wages to the
part-time sweepers. (Para 9 and 13)
B. Service law - Minimum Wages Act,
1948 - Ss. 2(e)(ii) and 26 - Government
hospital, whether it is exempted from
the
application
of
the
Act
-
No
notification issued u/s 26 exempting
government
hospital
from
the
application of the Act - Effect - Term
'employer'
defined
-
Held,
the
respondents, who have engaged the
petitioner in a scheduled employment
for which minimum wages are fixed, are
'employer' for all purposes under the Act
of 1948. (Para 11 and 12)
Writ petition allowed. (E-1)

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Petitioner claims to be working on
the post of Sweeper-cum-Chowkidar since
2012 as a part-time sweeper on payment of
Rs.500/- per month. Since 2012 till the date
the said payment being made to the
petitioner is not revised, hence, petitioner
has approached this court.

2. Learned counsel for petitioner
submits that at this stage he is not pressing
his prayer with regard to regularization of
services as the case of petitioner is not yet
covered under any regularization rules.
Further, petitioner is also not entitled for
minimum of pay scale of Sweeper-cumChowkidar as petitioner is working as a
part time sweeper. However, it is submitted
by learned counsel for petitioner that long
hours of work is being taken from the
petitioner in the garb of part-time work and
the amount being paid to the petitioner is
meager.

3. Learned counsel for petitioner
places reliance upon the provisions of the