# Vishal Saini v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 217
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-17
- **Case number:** Service Single No. 21946 of 2020
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishal-saini-v-state-of-u-p-ors-46915
- **Pages:** 11

## Headnote

Law
-
UP
Recruitment
of
Dependents
of
Government
Servants
Dying-in-Harness
Rules,
1974
-
Compassionate appointment - Nature -
Compassionate appointment is in the
nature of an exception to the ordinary
norm of allowing equality of opportunity
to every eligible person to compete for
public employment - Reason for the
exception as envisaged in the Rules is that
the immediacy of the financial hardship
that is sustained by a bereaved family by
the death of its earning member is sought
to be alleviated in a situation in which the
Government servant died while in service
- Shiv Kumar Dubey's case of Supreme
Court followed. (Para 10)

B. Constitution of India - Proviso to
Article 309 - UP Dying-in-Harness Rules,
1974 - Compassionate appointment -
Object and Purpose - Rules have been
framed by the St. Government in exercise
of the powers conferred by the proviso to
Article 309 of the Constitution - It make it
abundantly clear that the purpose and
object
underlying
the
provision
for
compassionate appointment is not to
reserve a post for a member of the family
of a deceased Government servant who
has died while in service. The basic object
and purpose is to provide a means to
alleviate the financial distress of a family
caused by the death of its member who
was in Government service. (Para 11)

C. Civil Law - UP Dying-in-Harness Rules,
1974
-
Rule
5
and
its
proviso
-
Compassionate appointment - Time limit
of
five
years
-
Relaxation
-St.
government's
power
to
consider
for
relaxation - Rejection of claim by the
authority - Validity - Held, the respondent
did not have authority to reject the
application of the petitioner on the ground
of delay as Rule 5 only empowers the St.
Government to do so. The concerned
authority only had to refer the matter to
the St. Government for consideration of
the application of the petitioner for
compassionate appointment. (Para 20 and
24)

D. Civil Law - UP Dying-in-Harness Rules,
1974
-
Rule
5
and
its
proviso
-
Compassionate appointment - Expression
'Undue Hardship' - Applicability - Proviso
to Rule 5 empower government to relax
the period of five years, if time limit
causes undue hardship - Held, on the
basis of objective considerations founded
on the disclosures made by the petitioner
in
this
case
for
compassionate
appointment and having considered the
reasons for the delay, undue hardship
within the meaning of the first proviso to
Rule 5 of the Rules would be caused to the
petitioner. (Para 21)

E. Civil Law - UP Dying-in-Harness Rules,
1974
-
Rule
2(c)
-
Compassionate
appointment - Adopted son - Entitlement
- Rule 2 (c) provides that the adopted son
is entitled for compassionate appointment
- Held, adopted son will be treated as son
for the purpose of U.P. Rules, 1974 -
Argument of the St. that the adopted son
is
not
entitled
for
compassionate
appo

## Text

3 All. Vishal Saini Vs. State of U.P. & Ors.
217
not in domain of computer science or those
who are not entirely covered under the
syllabus of 'O' level. In such circumstances,
it is clearly evident that the ratio of Zahoor
Ahmad case (supra) is not applicable in the
instant case.

49. So far as ratio of Deepak Singh's
case (supra) is concerned, the said case is
also not applicable in the instant case
because in Deepak Singh's (supra) there
was a specific bar and the candidates
holding higher degree were categorically
excluded for being considered under the
said advertisement, and also there was no
material
on
record
to
show
that
qualification possessed by the petitioners
therein was in same line of the progression.
However, in the instant case there is no
such bar and also there is sufficient
material on record to establish that the
qualification possessed by the petitioners
herein covers the syllabus 'O' level Course,
which is one of the basic essential
qualification.

50. The concept of equality enshrined
in Article 14 & 16 of the Constitution of
India guarantees equal opportunity to all
eligible persons to compete for selection
and appointment to a public employment. A
person
who
should
be
appointed
substantively on a particular post under
recruitment rules by the State must be most
meritorious and suitable person for holding
that post for the reason that every
appointment made by the State is made in
the larger public interest and not for private
interest of any person. The right to public
employment is a new form of property. It is
not only a vast source of patronage for the
Government but is also a great source of
living and happiness to our unemployed
millions.
Public
employment
being
property of the nation should not be
monopolized.

51. In view of the above discussions
and observations, it would be suffice to say
that
a
candidate
who
can
provide
conclusive
evidence
that
he/she
has
educational qualification or experience at
least equal to what is required by the
minimum qualification deserves careful
consideration, even if their degrees have
titles different from those recognized in the
disciplines list or if they acquired their
qualifications by a route other than a
conventional one.

52. Consequently, all the above
mentioned writ petitions are allowed.

53. Respondents are directed to
reconsider the candidature of the petitioners
in accordance with law as well as in the
light of observations made hereinabove and
allow them to participate in the Physical
Standard Test and subsequent selection
process in pursuance of Advertisement
No.PRPB-2-1(9)/2016 dated 26.12.2016 &
Advertisement No.PRPB-2-1(9)/2016(Part1) dated 22.12.2016.
----------
(2021)03ILR A217
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2021

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Service Single No. 21946 of 2020

Vishal Saini ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
218 INDIAN LAW REPORTS ALLAHABAD SERIES
Pramod Kumar Yadav

Counsel for the Respondents:
C.S.C.
A.
Civil
Law
-
UP
Recruitment
of
Dependents
of
Government
Servants
Dying-in-Harness
Rules,
1974
-
Compassionate appointment - Nature -
Compassionate appointment is in the
nature of an exception to the ordinary
norm of allowing equality of opportunity
to every eligible person to compete for
public employment - Reason for the
exception as envisaged in the Rules is that
the immediacy of the financial hardship
that is sustained by a bereaved family by
the death of its earning member is sought
to be alleviated in a situation in which the
Government servant died while in service
- Shiv Kumar Dubey's case of Supreme
Court followed. (Para 10)

B. Constitution of India - Proviso to
Article 309 - UP Dying-in-Harness Rules,
1974 - Compassionate appointment -
Object and Purpose - Rules have been
framed by the St. Government in exercise
of the powers conferred by the proviso to
Article 309 of the Constitution - It make it
abundantly clear that the purpose and
object
underlying
the
provision
for
compassionate appointment is not to
reserve a post for a member of the family
of a deceased Government servant who
has died while in service. The basic object
and purpose is to provide a means to
alleviate the financial distress of a family
caused by the death of its member who
was in Government service. (Para 11)

C. Civil Law - UP Dying-in-Harness Rules,
1974
-
Rule
5
and
its
proviso
-
Compassionate appointment - Time limit
of
five
years
-
Relaxation
-St.
government's
power
to
consider
for
relaxation - Rejection of claim by the
authority - Validity - Held, the respondent
did not have authority to reject the
application of the petitioner on the ground
of delay as Rule 5 only empowers the St.
Government to do so. The concerned
authority only had to refer the matter to
the St. Government for consideration of
the application of the petitioner for
compassionate appointment. (Para 20 and
24)

D. Civil Law - UP Dying-in-Harness Rules,
1974
-
Rule
5
and
its
proviso
-
Compassionate appointment - Expression
'Undue Hardship' - Applicability - Proviso
to Rule 5 empower government to relax
the period of five years, if time limit
causes undue hardship - Held, on the
basis of objective considerations founded
on the disclosures made by the petitioner
in
this
case
for
compassionate
appointment and having considered the
reasons for the delay, undue hardship
within the meaning of the first proviso to
Rule 5 of the Rules would be caused to the
petitioner. (Para 21)

E. Civil Law - UP Dying-in-Harness Rules,
1974
-
Rule
2(c)
-
Compassionate
appointment - Adopted son - Entitlement
- Rule 2 (c) provides that the adopted son
is entitled for compassionate appointment
- Held, adopted son will be treated as son
for the purpose of U.P. Rules, 1974 -
Argument of the St. that the adopted son
is
not
entitled
for
compassionate
appointment was rejected by the High
Court. (Para 23)

Writ Petition allowed. (E-1)

Cases relied on :-

1. Shiv Kumar Dubey & ors. Vs St. of U.P. &
ors.; MANU/UP/0189/2014

2. Subhash Yadav Vs St. of U.P. through
Secretary Education Department (Basic) & ors.;
MANU/UP/2289/2010

3. Umesh Kumar Nagpal Vs St. of Har. & ors.;
(1994) 4 SCC 138

4. Director of Education (Secondary) & anr. Vs
Pushpendra Kumar & ors.; (1998) 5 SCC 192

5. Sushma Gosain & ors. Vs U.O.I. & ors.;
(1989) 4 SCC 468
3 All. Vishal Saini Vs. State of U.P. & Ors.
219
6. Jagdish Prasad Vs St. of Bihar & anr.;
MANU/SC/0996/1996

7. Haryana St. Electricity Board & anr. Vs Hakim
Singh; MANU/SC/0964/1997

8. Md. Zamil Ahmed Vs The St. of Bihar & ors.;
MANU/SC/0515/2016

9. Sunil Saxena Vs St. of U.P. & ors.; 1994 (68)
FLR, 283

10. Singhasan Gupta Vs St. of U.P. & anr.;
(1996) 1 UPLBEC 4

11. Ravindra Kumar Dubey Vs St. of U.P. & ors.;
2005 (4) ESC 2706 (All)

12. Shiv Prasad Vs St. of U.P. & ors.; 2009 (3)
ESC 1869 (All)

13. Jagat Pal Vs St. of U.P. & ors.; 2011 (2) ADJ
511

(Delivered by Hon'ble Chandra Dhari Singh, J.)

1. Heard learned Counsel for the
petitioner and learned Counsel appearing
on behalf of the State.

2. The petitioner has approached this
Court
challenging
the
order
dated
11.12.2019 whereby the Director General,
Jail Administration and Reforms Services
Directorate, Lucknow has rejected the
representation
of
the
petitioner
for
compassionate appointment on the ground
of delay. The petitioner, inter alias, has
further prayed for a direction to the
respondents to appoint the petitioner on
compassionate ground according to his
qualification.

3. Submission of learned Counsel for
the petitioner is that the father of the
petitioner, namely, Shiv Prasad Saini who
was working as Chaukidar in District Jail,
Unnao died on 29.06.2006 during service
period and after the death of her father, the
mother of the petitioner, namely, Smt.
Munni
Devi
was
appointed
on
compassionate ground on the post of
Chaukidar. The mother of the petitioner
was also died on 31.01.2012 during service
period. The date of birth of the petitioner is
17.04.2001 and at the time of death of her
mother, he was 11 years of age. The
petitioner is the adopted son of late Munni
Devi. The adoption deed was registered on
20.06.2007 in the office of Sub-Registrar,
Unnao.

4. Learned Counsel for the petitioner
has further submitted that after attaining the
age of majority, the petitioner has applied
for
compassionate
appointment
on
11.10.2019 but the same has illegally been
rejected by the respondent no.2 vide order
dated 11.12.2019 on the ground that since
the application has been moved after five
years, therefore, the application of the
petitioner is beyond limitation and he is not
entitled for compassionate appointment.
While passing the impugned order, the
respondent no.2 has not taken into
consideration the fact that at the time of
death of his mother, the petitioner was
minor and the petitioner has applied for
compassionate appointment after attaining
the age of majority which is within time as
prescribed
in
U.P.
Recruitment
of
Dependants
of
Government
Servants
Dying-in-Harness Rules, 1974.

5. Per contra, learned Counsel
appearing on behalf of the State has
vehemently opposed the submissions of
learned Counsel for the petitioner and
submitted that the petitioner is the adopted
son of the deceased employee and,
therefore,
he
is
not
entitled
for
compassionate appointment. The petitioner
has
also
applied
for
compassionate
220 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment beyond the limitation and,
therefore, the respondent no.2 has rightly
rejected the application of the petitioner.

6. I have considered the submissions
of learned Counsel for the parties and
perused the record.

7. To appreciate the contentions, it is
necessary to first examine the relevant
provisions of the U.P. Recruitment of
Dependent of the Rules. The expression
'deceased Government servant' is defined
by Clause (b) of Rule 2 to mean a
Government servant who dies while in
service. Rule 2(c) of the Rules defines
''family'. Rule 2 (c) of 1974 Rules defines
expression
"family"
of
a
deceased
employee in the following terms:

"2(c) "family" shall include the
following
relations
of
the
deceased
Government servant:

(i) Wife or husband;

(ii) Sons/adopted sons;

(iii)
Unmarried
daughters,
unmarried adopted daughters, widowed
daughters and widowed daughters-in-law;

(iv)
Unmarried
brothers,
unmarried sisters and widowed mother
dependent on the deceased Government
servant, if the deceased Government
servant was unmarried;

(v) aforementioned relations of
such missing Government servant who has
been declared as "dead" by the competent
Court;

Provided
that
if
a
person
belonging to any of the above mentioned
relations of the deceased Government
servant is not available or is found to be
physically and mentally unfit and thus
ineligible for employment in Government
service, then only in such situation the
word "family" shall also include the
grandsons
and
the
unmarried
granddaughters
of
the
deceased
Government servant dependent on him."

8. Rule 5 of U.P Recruitment of
Dependent of the Rules,1974 provides as
follows:

"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-fulfils the educational
qualifications prescribed for the post, is
otherwise
qualified
for
Government
service; and 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.

Provided further that for the
purpose of the aforesaid proviso, the
3 All. Vishal Saini Vs. State of U.P. & Ors.
221
person concerned shall explain the reasons
and give proper justification in writing
regarding the delay caused in making the
application for employment after the expiry
of the time limit fixed for making the
application for employment along with the
necessary documents/proof in support of
such delay and the Government shall, after
taking into consideration all the facts
leading to such delay take the appropriate
decision.

(2) As far as possible, such an
employment should be given in department
in which the deceased Government servant
was employed prior to his death.

(3) Every appointment made
under sub-rule (1) shall be subject to the
condition that the person appointed under
sub-rule (1) shall maintain other members
of the family of deceased Government
servant, who were dependent on the
deceased Government servant immediately
before his death and are unable to maintain
themselves.

9. Rule 8 provides as under:

8. Relaxation from age and other
requirements.--(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. An
appointment under these rules shall be
made against an existing vacancy only."

9. Now, it is in this background, it
would be appropriate to mention the
principles of the law laid down by this
Court and Supreme Court on the subject. In
Shiv Kumar Dubey and others vs. State of
U.P. and others; MANU/UP/0189/2014,
this Court after elaborately analysing the
basic precepts interpreted the provision of
the Rules in the light of the principles of
law which emerge from the judgment of
this court and Supreme Court. This court
thus formulated the principles which must
govern
compassionate
appointment
in
pursuance of Dying in Harness Rules as
under:

"(i)
A
provision
for
compassionate appointment is an exception
to the principle that there must be an
equality of opportunity in matters of public
employment.
The
exception
to
be
constitutionally valid has to be carefully
structured and implemented in order to
confine compassionate appointment to only
those situations which subserve the basic
object and purpose which is sought to be
achieved;

(ii) There is no general or vested
right
to
compassionate
appointment.
Compassionate
appointment
can
be
claimed only where a scheme or rules
provide for such appointment. Where such
a provision is made in an administrative
scheme or statutory rules, compassionate
appointment must fall strictly within the
scheme or, as the case may be, the rules;

(iii) The object and purpose of
providing compassionate appointment is to
enable the dependent members of the
family of a deceased employee to tide over
the immediate financial crisis caused by the
death of the bread-earner;

(iv) In determining as to whether
the family is in financial crisis, all relevant
aspects must be borne in mind including
the income of the family; its liabilities, the
terminal benefits received by the family; the
age, dependency and marital status of its
222 INDIAN LAW REPORTS ALLAHABAD SERIES
members, together with the income from
any other sources of employment;

(v) Where a long lapse of time
has occurred since the date of death of the
deceased employee, the sense of immediacy
for seeking compassionate appointment
would cease to exist and this would be a
relevant circumstance which must weigh
with the authorities in determining as to
whether
a
case
for
the
grant
of
compassionate appointment has been made
out;

(vi)
Rule
5
mandates
that
ordinarily,
an
application
for
compassionate appointment must be made
within five years of the date of death of the
deceased employee. The power conferred
by the first proviso is a discretion to relax
the period in a case of undue hardship and
for dealing with the case in a just and
equitable manner;

(vii) The burden lies on the
applicant, where there is a delay in making
an application within the period of five
years to establish a case on the basis of
reasons and a justification supported by
documentary and other evidence. It is for
the State Government after considering all
the facts to take an appropriate decision.
The power to relax is in the nature of an
exception and is conditioned by the
existence of objective considerations to the
satisfaction of the Government;

(viii) Provisions for the grant of
compassionate
appointment
do
not
constitute a reservation of a post in favour
of a member of the family of the deceased
employee. Hence, there is no general right
which can be asserted to the effect that a
member of the family who was a minor at
the time of death would be entitled to claim
compassionate appointment upon attaining
majority. Where the rules provide for a
period of time within which an application
has to be made, the operation of the rule is
not suspended during the minority of a
member of the family."

10. In Shiv Kumar Dubey's case
(supra), while interpreting the provisions of
Rule 5, this Court observed that appointments
to public offices have to comply with the
requirements of Article 14 and Article 16 of
the Constitution. Article 16 provides for
equality of opportunity in matters of public
employment. Compassionate appointment is
in the nature of an exception to the ordinary
norm of allowing equality of opportunity to
every eligible person to compete for public
employment. The reason for the exception as
envisaged in the Rules is that the immediacy
of the financial hardship that is sustained by a
bereaved family by the death of its earning
member is sought to be alleviated in a
situation in which the Government servant
died while in service. Rule 5 of the Rules
applies where a Government servant has died
in harness after the commencement of the
Rules.

11. The Court further observed that
Rules have been framed by the State
Government in exercise of the powers
conferred by the proviso to Article 309 of the
Constitution. The Rules make it abundantly
clear that the purpose and object underlying
the provision for compassionate appointment
is not to reserve a post for a member of the
family of a deceased Government servant
who has died while in service. The basic
object and purpose is to provide a means to
alleviate the financial distress of a family
caused by the death of its member who was
in Government service. This is the underlying
theme or thread which cuts across almost
every provision of the Rules.

12. It was further observed by the
Court that the rationale for imposing a limit
of five years beyond which an application
3 All. Vishal Saini Vs. State of U.P. & Ors.
223
cannot be entertained is that the purpose of
compassionate appointment is to bridge the
immediacy of the loss of an earning
member and the financial distress that is
sustained in consequence. A lapse of time is
regarded by the Rules as leading to a
dilution
of
the
immediacy
of
the
requirement. The discretionary power to
relax the time limit of five years under first
proviso to Rule 5 is in the nature of an
exception. It is a power which is vested in
the State Government, a circumstance
which is indicative of the fact that the
subordinate legislation expects it to be
exercised with scrupulous care. Ordinarily,
the time limit of five years governs. The
State Government may relax the norm on a
careful evaluation of the circumstances
mandated by the second proviso. It is but a
matter of first principle that a discretionary
power to relax the ordinary requirement
should not swallow the main or substantive
provision and render the basic purpose and
object nugatory.

13. In Subhash Yadav vs. State of
U.P.
through
Secretary
Education
Department
(Basic)
and
others;
MANU/UP/2289/2010, the Division Bench
of this Court dealt with a situation where
the father of the appellant had died in
harness on 8 August 1994 when the
appellant was six years of age. The
appellant attained the age of majority on 5
December 2005 and made an application
for compassionate appointment. The State
Government declined to accord relaxation
of the period of five years and the writ
petition
filed
by
the
appellant
was
dismissed by a learned Single Judge who
held that since the appellant had been able
to survive for sixteen years, that was
indicative of a lack of immediacy. The
Division Bench held that the Government
erred in rejecting the application on the
ground that there was an inordinate delay
and
such
a
blanket
reason
without
considering anything else would not be in
conformity with the power which has been
conferred on the State, to relax the time
period,
which
has
to
be
exercised
reasonably. Hence, the Division Bench held
that the authorities cannot reject an
application "blindfold" if it had been
moved after five years and were required to
apply their mind rationally, exercising the
discretion in view of other factors relating
to the case.

14. In Umesh Kumar Nagpal vs.
State of Haryana and others; (1994) 4
SCC 138, the Supreme Court explained the
basic purpose of providing compassionate
appointment to the dependent of a deceased
employee who has died in harness:

"The object is not to give a
member of such family a post much less a
post for post held by the deceased. What is
further, mere death of an employee in
harness does not entitle his family to such
source of livelihood. The Government or
the public authority concerned has to
examine the financial condition of the
family of the deceased, and it is only if it is
satisfied, that but for the provision of
employment, the family will not be able to
meet the crisis that a job is to be offered to
the eligible member of the family. The posts
in Classes III and IV are the lowest posts in
non- manual and manual categories and
hence they alone can be offered on
compassionate grounds, the object being to
relieve
the
family,
of
the
financial
destitution and to help it get over the
emergency.... For these very reasons, the
compassionate
employment
cannot
be
granted after a lapse of reasonable period
which must be specified in the rules. The
consideration for such employment is not a
224 INDIAN LAW REPORTS ALLAHABAD SERIES
vested right which can be exercised at any
time in future. The object being to enable
the family to get over the financial crisis
which it faces at the time of the death of the
sole
breadwinner,
the
compassionate
employment cannot be claimed and offered
whatever the lapse of time and after the
crisis is over."

15. In Director of Education
(Secondary) and another vs. Pushpendra
Kumar and others; (1998) 5 SCC 192, the
Supreme Court while granting relief of
compassionate
appointment
gave
a
direction that if no class III post is available
in the institution in which the deceased
employee was employed or in any other
institution
in
the
district,
the
said
respondent would be appointed against a
Class IV post in the institution in which the
deceased employee was employed and a
supernumerary post in class IV be created
for that purpose . To quote the relevant
extract:

"The
object
underlying
a
provision for grant of compassionate
employment is to enable the family of the
deceased employee to tide over the sudden
crisis resulting due to death of the bread
earner which has left the family in penury
and without any means of livelihood. Out of
pure
humanitarian
consideration
and
having regard to the fact that unless some
source of livelihood is provided, the family
would not be able to make both ends meet,
a provision is made for giving gainful
appointment to one of the dependents of the
deceased who may be eligible for such
appointment. Such a provision makes a
departure from the general provisions
providing for appointment on the post by
following a particular procedure. Since
such a provision enables appointment being
made without following the said procedure,
it is in the nature of an exception to the
general provisions. An exception cannot
subsume the main provision to which at is
an exception and thereby nullify tine main
provision by taking away completely the
right conferred by the main provision. Care
has, therefore, to be taken that a provision
for grant of compassionate employment,
which is in the nature of an exception to the
general
provisions,
does
not
unduly
interfere with the right of other persons
who are eligible for appointment of seek
employment against the post which would
have been available to them, but for the
provision
enabling
appointment being
made on compassionate grounds of the
dependent of a deceased employee."

16. In Sushma Gosain and others vs.
Union of India and others; (1989) 4 SCC
468 Supreme Court observed thus:

"The
purpose
of
providing
appointment on compassionate ground is to
mitigate the hardship due to death of the
bread
earner
in
the
family.
Such
appointment should, therefore, be provided
immediately to redeem the family in
distress. It is improper to keep such case
pending for years. If there is no suitable
post for appointment supernumerary post
should be created to accommodate the
applicant."

17. In Jagdish Prasad vs. State of
Bihar and another; MANU/SC/0996/1996
Supreme Court observed as under:

"3. It is contended for the
appellant that when his father died in
harness, the appellant was minor; the
compassionate circumstances continue to
subsist even till date and that, therefore, the
Court is required to examine whether the
appointment
should
be
made
on
3 All. Vishal Saini Vs. State of U.P. & Ors.
225
compassionate grounds. We are afraid, we
cannot accede to the contention. The very
object of appointment of a dependent of the
deceased employees who die in harness is
to relieve unexpected immediate hardship
and distress cause to the family by sudden
demise of the earning member of the family.
Since the death occurred way back in 1971,
in which year the appellant was four years
old, it cannot be said that he is entitled to
be appointed after he attained majority
long thereafter. It other words, if that
contention is accepted, it amounts to
another mode of recruitment of the
dependent of a deceased Government
servant which cannot be encouraged de
hors the recruitment rules."

18. In Haryana State Electricity
Board and another vs. Hakim Singh;
MANU/SC/0964/1997
Supreme
Court
observed as under:

"12. We are of the view that the
High Court has erred in over stretching
the scope of the compassionate relief
provided by the Board in the circulars as
above. It appears that High Court would
have treated the provision as a lien
created by the Board for a dependent of
the deceased employee. If the family
members of the deceased employee can
manage for fourteen years after his death
one of his legal heirs cannot put forward
claim as though it is a line of succession
by virtue of a right of inheritance. The
object of the provisions should not be
forgotten that it is to give succour to the
family to tide over the sudden financial
crisis befallen the dependants on account
of the untimely demise of its sole earning
member."

19. In the leading case of Md. Zamil
Ahmed vs. The State of Bihar and others;
MANU/SC/0515/2016, the Supreme Court
upheld the validity of the compassionate
appointment of the brother of the deceased
constable who left behind him illiterate
wife
and
four
minor
children
and
disapproved the action taken by the state of
terminating his service on the ground that
the Appellant being the only close relative
of the deceased could be given the
appointment
in
the
circumstances
prevailing in the family. It was observed
that the action on the part of welfare state
in terminating the appellant service on the
ground that he was not dependent of the
deceased cant be countenanced. The state
was not permitted to terminate the services
of the appellant as constable after 15 years
of his appointment for the following
reasons:

"15. Firstly, the Appellant and
wife of the deceased at the time of seeking
compassionate
appointment
did
not
conceal any fact and nor filed any false or
incorrect document/declaration. On the
other hand, both of them disclosed their
true
family
relations
and
conditions
prevailing in the deceased family on
affidavit.

16. Secondly, the Appellant, who
is the brother of the deceased, undertook to
maintain the family of the deceased in the
event of his securing the compassionate
appointment and he accordingly also gave
such undertaking to the State.

17. Thirdly, there was no one in
the family of the deceased to claim
compassionate appointment except the
Appellant who, as mentioned above, was
the close relative of the deceased, i.e., real
younger brother and used to live with the
deceased. He was otherwise eligible to
claim such appointment being major,
educated and only male member in the
family.
226 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Fourthly, the Appellant after
securing
the
employment
throughout
maintained the family of the deceased in all
respects for the last more than 15 years and
he is continuing to do so.

19. In the light of aforementioned
reasons, which rightly persuaded the State
to grant compassionate appointment to the
Appellant, we do not find any justification
on the part of the State to dig out the
Appellant's case after 15 years of his
appointment and terminate his services on
the ground that as per the State policy, the
Appellant did not fall within the definition
of the expression "dependent of deceased"
to claim compassionate appointment.

20. The fact that the Appellant
was younger brother of the deceased was
within
the
knowledge
of
the
State.
Similarly, the State was aware that the
brother does not fall within the definition of
dependent at the relevant time and still the
State authorities obtained the undertaking
from the Appellant that he would maintain
the family of the deceased once given the
appointment.

21. In our considered view, the
aforesaid facts would clearly show that it
was a conscious decision taken by the State
for giving an appointment to the Appellant
being the younger brother of deceased
constable for the benefit of the family
members of the deceased who were facing
financial hardship due to sudden demise of
their bread earner. In our view, it was a
right decision taken by the State as a
welfare state to help the family of the
deceased at the time of need of the family."

20. In the instant case, the petitioner
submitted that when his mother died, he
was only 11 years old and after attaining
the age of majority, the petitioner has
sought for compassionate appointment. The
department negatived the representation in
this matter taking stand that the application
was not made within prescribed period.
However, the petitioner's request for
compassionate appointment was made soon
after petitioner attained majority. Under
Rule 5 the time limit within which the
dependant of the deceased employee is to
be accommodated is fixed as five year. This
period can be extended under proviso to
Rule 5 where burden of proving the fact
that
compassionate
circumstances
continued to exist even till date was on the
petitioner
himself
which
he
has
successfully discharged in this case.

21. On the basis of objective
considerations founded on the disclosures
made by the petitioner in this case for
compassionate appointment and having
considered the reasons for the delay, I am
of the opinion that undue hardship within
the meaning of the first proviso to Rule 5 of
the Rules would be caused to the petitioner.
The expression 'undue hardship' has not
been defined in the Rules. Undue hardship
would necessarily postulate a consideration
of relevant facts and circumstances of the
case.

22. In this case the petitioner was
adopted by his mother vide Adoption Deed
dated 20.06.2007 and the adoption deed
was decreed vide judgment and decree
dated 24.07.2012 passed by the Civil Judge
(SD), Unnao.

23. In the cases of Sunil Saxena vs.
State of U.P. and others; 1994 (68) FLR,
283, Singhasan Gupta vs. State of U.P.
and another; (1996) 1 UPLBEC 4,
Ravindra Kumar Dubey vs. State of U.P.
and others; 2005 (4) ESC 2706 (All), Shiv
Prasad vs. State of U.P. and others; 2009
(3) ESC 1869 (All) and in the case of
Jagat Pal vs. State of U.P. and others;
3 All. Dinesh Kumar Yadav & Anr. Vs. State of U.P. & Ors.
227
2011 (2) ADJ 511, it has been held that
adopted son will be treated as son for the
purpose of U.P. Recruitment of Dependents
of Government Servants Dying in Harness
Rules, 1974. Rule 2 (c) itself provides that
the
adopted
son
is
entitled
for
compassionate appointment. Hence, there
is no force in the argument of learned
Counsel appearing on behalf of the State
that the adopted son is not entitled for
compassionate appointment.

24. The impugned order dated 11.12.2019
has been passed by the Director General, Jail
Administration
and
Reforms
Services
Directorate, Lucknow who did not have
authority to reject the application of the
petitioner on the ground of delay as Section 5 of
1974
Rules
only
empowers
the
State
Government to do so. Therefore, the concerned
authority only had to refer the matter to the
State Government for consideration of the
application of the petitioner for compassionate
appointment and this having not been done,
renders the impugned order itself vitiated.

25. In view of above, the writ petition is
allowed with a direction to the respondents to
consider the case of petitioner keeping in view
the
observations
made
hereinabove
for
compassionate appointment within two months
from the date on which the certified copy of this
order is made available by petitioner along with
his representation and decide the same, if there
is no other legal impediment.
----------
(2021)03ILR A227
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.02.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 24261 of 2020
Dinesh Kumar Yadav & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Amarendra Nath Tripathi

Counsel for the Respondents:
C.S.C.

A. Service Law - Post of Assistant teacher
- Selection and appointment - Approval
granted
by
competent
authority
-
Approval
order
reviewed/recalled
-
Payment of salary stopped - No allegation
of fraud or misrepresentation - Validity -
No statute provide power of review -
Held, if the statutes does not provide the
provision permitting to review/recall the
order, the same cannot be done by the
authority - Impugned order should have
not been passed by the same authority
making review of its earlier order -
Impugned order quashed by High Court
holding
it
illegal,
unwarranted
and
without jurisdiction as well suffers from
voice of arbitrariness and perversity. (Para
34 and 35)

Writ Petition allowed. (E-1)

Cases relied on :-

1. Naresh Kumar & ors. Vs Government (NCT of
Delhi); (2019) 9 SCC 416

2. Dr. (Smt.) Kuntesh Gupta Vs Management of
Hindu Kanya Mahavidyalaya, Sitapur (U.P.) &
ors.; AIR 1987 SC 2186)

(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

1. Heard Sri Amrendra Nath Tripathi,
learned counsel for the petitioners and the
learned
Standing
Counsel
for
the
respondents.

2. By means of this writ petition, the
petitioners have assailed the order dated
30.06.2020 passed by the District Inspector