# Vishal Srivastava v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1529
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-29
- **Case number:** Civil Misc. Writ Petition No. 58418 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishal-srivastava-v-state-of-u-p-and-ors-42740
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.-226Compassionate appointment-can not be
claimed by virtue of succession-as matter of
right-father of petitioner died in 1995-when
he was less than 5 years old-mother getting
pension-never
put
any
claim
for
her
appointment-manage to educate her son
and maintain herself alongwith two childrenfor such long time rightly rejected by
authorities-even in writ petition nothing
whisper regarding financial crisis-which still
continuing in the year 2012-in absence of
basic foundation about financial distresspower under proviso of Rule 5 can not be
exercised-refusal to grant compassionate
appointment-held-proper.

Held: Para-10
The proviso stressed on the words that
relaxation has to be given in specific cases
where undue hardship would cause on
account of adherence to the provision
relating to five years period within which
the application ought to have been made.
The language makes it very clear that the
relaxation is not to be resorted lightly and
frequently. The basic objective and purpose
of compassionate appointment, therefore,
has to be adhered. There is no scope for
omission of this basic requirement that the
family's sufferance on account of financial
hardship etc. is continuing. When in a
particular case, no ground or foundation is
made out with respect to such financial
distress, penurious condition etc., the
question of invoking power under proviso
to Rule 5 does not arise at all. In fact, the
proviso at all would not be attracted in such
case
and
denial
of
compassionate
appointment in such case deserves to be
sustained and would not be justified to be
interfered by this Court.

Case Law discussed:
2008(11) SCC 384; JT 2009(8) SC 135; JT
2009(6) SC 624; 2013(31) LCD 674; 2010(7)
ADJ 1 (DB); W.P. No. 58401 of 2013.

## Text

3 All] Vishal Srivastava Vs. State of U.P. and Ors.
1529
petitioners is still available to raise this
issue as to whether the respondent Nos. 4
and 5 fall within the definition of
aggrieved person or not.

8. Consequently, I do not find any
reason to entertain this writ petition. The
writ petition is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.10.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 58418 of 2013

Vishal Srivastava
 ...Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamal Dev Rai

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.-226Compassionate appointment-can not be
claimed by virtue of succession-as matter of
right-father of petitioner died in 1995-when
he was less than 5 years old-mother getting
pension-never
put
any
claim
for
her
appointment-manage to educate her son
and maintain herself alongwith two childrenfor such long time rightly rejected by
authorities-even in writ petition nothing
whisper regarding financial crisis-which still
continuing in the year 2012-in absence of
basic foundation about financial distresspower under proviso of Rule 5 can not be
exercised-refusal to grant compassionate
appointment-held-proper.

Held: Para-10
The proviso stressed on the words that
relaxation has to be given in specific cases
where undue hardship would cause on
account of adherence to the provision
relating to five years period within which
the application ought to have been made.
The language makes it very clear that the
relaxation is not to be resorted lightly and
frequently. The basic objective and purpose
of compassionate appointment, therefore,
has to be adhered. There is no scope for
omission of this basic requirement that the
family's sufferance on account of financial
hardship etc. is continuing. When in a
particular case, no ground or foundation is
made out with respect to such financial
distress, penurious condition etc., the
question of invoking power under proviso
to Rule 5 does not arise at all. In fact, the
proviso at all would not be attracted in such
case
and
denial
of
compassionate
appointment in such case deserves to be
sustained and would not be justified to be
interfered by this Court.

Case Law discussed:
2008(11) SCC 384; JT 2009(8) SC 135; JT
2009(6) SC 624; 2013(31) LCD 674; 2010(7)
ADJ 1 (DB); W.P. No. 58401 of 2013.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard learned counsel for parties
and perused the record.

2.

Petitioner's
claim
for
compassionate appointment has been
rejected on the ground that the death of
deceased
employee
took
place
in
17.3.1995 and after more than 17 years,
there is no justification to provide
compassionate appointment.

3. I do not find any irregularity or
illegality in the view taken by the
authorities concerned. It is well settled
that if the family had sufficient means to
carry on its affairs for long time, in such a
case compassionate appointment cannot
be made. The purpose of compassionate
appointment
is
not
to
provide
employment by succession but it is to
meet immediate necessity arrived at due
1530 INDIAN LAW REPORTS ALLAHABAD SERIES
to sudden demise of sole bread earner of
the family leaving the legal heirs in
penury.

4. In Mumtaz Yunus Mulani Vs.
State of Maharashtra & Ors, 2008(11)
SCC 384 the Court held that now a well
settled
principle
of
law
is
that
appointment on compassionate ground is
not a source of recruitment. The reason
for making such a benevolent scheme by
the State or public sector undertakings is
to see that the dependants of the deceased
are not deprived of the means of
livelihood. It only enables the family of
the deceased to get over sudden financial
crises.

5. The purpose of compassionate
appointment is not for providing a post
against post. It is not reservation in
service by virtue of succession. If the
family is not in penury and capable to
maintain itself for a long time, no
mandamus would be issued after a long
time
for
providing
compassionate
appointment to a legal heir of the
deceased employee. Recently in Santosh
Kumar Dubey Vs. State of U.P. and
others, JT 2009(8) SC 135 and M/s
Eastern Coalfields Ltd. Vs. Anil Badyakar
& Ors., JT 2009(6) SC 624 the Apex
Court
has
declined
to
issue
any
mandamus after expiry of a long time. In
Santosh Kumar Dubey (Supra) after
considering the U.P. Recruitment of
Dependents of Government Servants
Dying in Harness Rules, 1974 (hereinafter
referred to as "Rules, 1974") the Apex
Court said that if family of the deceased
has been able to survive, after five years
no mandamus or direction should be
issued
for
giving
compassionate
appointment.

6. Learned counsel for petitioner,
however, placed reliance on a decision of
this Court in Pravesh Kumar Singh Vs.
State of U.P. and others 2013 (31) LCD
674 wherein this Court has held that since
there is a power of condonation of delay
even if the application is moved after five
years from the date of death, therefore
whenever such an application is moved, it
ought to be referred to State Government,
since the power to condone the delay is
vested in it and the application ought not
to have been rejected by the appointing
authority on its own unless and until the
State Government has an occasion to
apply its mind with regard to question as
to whether the delay in filing the
application should be condoned or not in
exercise of its power under proviso to
Rule 5 (1) of Rules, 1974.

7. As a proposition of law, there
cannot be any exception of the fact that
since there is a provision under Rule 5 of
Rules, 1974, which empowers the State
Government to relax the period of five
years contemplated within which the
dependent
of
deceased
Government
Servant should apply for compassionate
appointment, but the said period cannot
be relaxed provided it is satisfied that this
time limit otherwise would cause undue
hardship. The State Government's power
of relaxation is with an object so that the
case of the dependent may be considered
in a just and equitable manner. This
aspect has been considered by Apex Court
also in Santosh Kumar Dubey (supra) and
it has taken the view that if the family of
deceased has been able to survive after
five years for a long time, any mandamus
or
direction
for
compassionate
appointment would frustrate the very
objective
and
purpose
of
such
appointment and that being so, the
3 All] Vishal Srivastava Vs. State of U.P. and Ors.
1531
question of relaxation of period by itself
would become otiose.

8. In fact, a Division Bench of this
Court in Vivek Yadav Vs. State of U.P.
and others 2010 (7) ADJ 1 (DB) also held
that if the power of relaxation is there, the
Government must apply its mind, but the
condition precedent for relaxation is that
the family of the deceased employee
continued
to
suffer
the
penurious
condition and financial distress. This
decision has been considered recently by
this Court in Civil Misc. Writ Petition No.
58401 of 2013 (Vishwadeep Singh Vs.
State Of U.P. & 3 others) decided on
24.10.2013 and the ratio laid down therein
has been highlighted in para 6 of the
judgment as under:

"6. Learned Counsel for petitioner,
however, placed reliance on a Division
Bench judgment of this Court in Vivek
Yadav Vs. State of U.P. and others 2010
(7) ADJ 1 (DB) to show that mere fact
that claim of compassionate appointment
has been raised after more than five years
by itself will not disentitle the legal heir
of
deceased
employee
from
such
appointment. Having gone through the
aforesaid decision, however, I find that
the wide amplitude sought to be given by
learned counsel for petitioner to the said
judgment is not correct. Therein it has
been observed by the Court, if an
application
for
compassionate
appointment is not made since there was
no eligible person to claim compassionate
appointment in the family of the deceased
and the child was minor, he can move
such an application after attaining the
majority,
provided,
the
family
of
deceased, over long passage of time,
continued to face hardship and this matter
can be examined by the competent
authority. The Court therein found, as a
matter of fact, that the widow of deceased
employee was uneducated or illiterate and
the son was minor. This Court further
held that power to relax requirement of
five years pre-supposes consideration of
matter in a particular case in a just and
equitable manner. The test to be applied is
"does family of the deceased continued to
suffer financial distress and hardship
occasioned by the death of the bread
earner so as to relax the period within
which the application could be made."

9. In the present case, petitioner's
father died on 17.3.1995. Petitioner date
of birth being 25.1.1990, admittedly he
was a little less than five years of age at
the time of death of his father. The
deceased employee left behind widow and
two minor sons Vishal, i.e. the petitioner
and Chhotu, who is younger than the
petitioner. The widow never claimed any
financial hardship, distress and penurious
condition of the family for the purpose of
seeking compassionate appointment and
instead maintained herself and both minor
children, managing them to undergo
education and also the other things. In the
affidavit of the widow, placed on record
as Annexure 3 to the writ petition, she has
not mentioned that the appointment she
intend to be given to the petitioner is on
account of penurious condition and
financial hardship of the family, but she
has expressed her desire that after the
death of husband, she intended to seek
appointment for her elder son Vishal
Srivastava, i.e., the petitioner. Even in the
application submitted by petitioner on
28.6.2012
seeking
compassionate
appointment (Annexure 2 to the writ
petition), there is not even a whisper
about the hardship, financial distress or
penurious conditions of the family of
1532 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased employee, who has died almost
more that one and half decade back. Even
in the entire writ petition, I do not find
appropriate pleadings and material to
show that the family of deceased
employee
throughout
has
suffered
financial distress and hardship which is
continuing even in 2012. It is in these
facts and circumstances, the above
decision cited in support of the writ
petition, in my view does not help the
petitioner for the reason that any other
view would amount to treat the petitioner
as if he has a right to hold a post reserved
by way of succession after the death of his
father
to
claim
compassionate
appointment irrespective of length of time
and other relevant consideration. A
reservation of post against post has
consistently
been
condemned
and
deprecated by the Apex Court since it is
contrary to concept of compassionate
appointment. The view I am taking finds
support from the language used in proviso
to Rule 5 (1) of Rules, 1974. It may be
noted that Rule 5, as it was initially
framed, neither provided any period
within which the application ought to
have been submitted nor contain any
power of relaxation with respect to such
period.
It,
however,
required
that
compassionate
appointment
shall
be
provided expeditiously and without any
delay. This Rule 5 was amended by
substitution vide U.P. Recruitment of
Dependents of Government Servants
Dying in Harness (Third Amendment)
Rules, 1993 (hereinafter referred to as
"Rules,
1993")
published
vide
Notification dated 16.4.1993 and the
substituted provision read as under:

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tk; rks mlds dqVqEc ds ,sls ,d lnL; dks tks
dsUnzh; ljdkj ;k jkT; ljdkj ds vFkok dsUnzh;
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gks] ;fn ,slk O;fDr&

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gks]

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gS%

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tk; fd lsok;kstu ds fy;s vkosnu djus ds fy;s
fu;r le; ls fdlh fof'k"V ekeys esa vuqfpr
dfBukbZ gksrh gS ogkWa og vis{kkvksa dks ftUgsa og
ekeys esa U;k;laxr vkSj lkE;iw.kZ jhfr ls dk;Zokgh
djus ds fy;s vko';d le>s] vfHkeqDr ;k f'kfFky
dj ldrh gSA

1⁄421⁄2 ,slh ukSdjh ;Fkk'kDr mlh foHkkx esa nh
tkuh pkfg;s ftlesa e`r ljdkjh lsod viuh e`R;q
ds iwoZ lsok;ksftr FkkA^^

10. The proviso stressed on the
words that relaxation has to be given in
specific cases where undue hardship
would cause on account of adherence to
the provision relating to five years period
within which the application ought to
have been made. The language makes it
very clear that the relaxation is not to be
resorted lightly and frequently. The basic
objective and purpose of compassionate
appointment, therefore, has to be adhered.
There is no scope for omission of this
basic
requirement
that
the family's
sufferance
on
account
of
financial
hardship etc. is continuing. When in a
particular case, no ground or foundation is
made out with respect to such financial
distress, penurious condition etc., the
question of invoking power under proviso
to Rule 5 does not arise at all. In fact, the
proviso at all would not be attracted in
3 All] Balraj Singh Bhadauria Vs. State of U.P. and Ors.
1533
such case and denial of compassionate
appointment in such case deserves to be
sustained and would not be justified to be
interfered by this Court.

11. In view of above discussion, I
find no merit in the writ petition.
Dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2013

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Civil Misc. Writ Petition No. 58503 of 2013

Balraj Singh Bhadauria ...Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Kumar Srivastava, Sri Pankaj
Srivastava

Counsel for the Respondents:
C.S.C., Sri R.N. Singh

Constitution of India, Art.-226-Service
Law-Reinstatement in service-dismissal
order-became
final
in
departmental
appeal-acquittal in criminal proceedingshall not give automatic reinstatementin absence of challenge of dismissalrightly refused to reinstate in servicewarrant no interference by writ court.

Held: Para-19
As stated above, the petitioner has not
challenged the punishment order. The
punishment order has attained finality.
The petitioner is not able to show any
provisions under the service rules for
reinstatement after acquittal in criminal
proceeding, therefore, in view of the
laws laid down by the Apex Court and
this Court, referred herein-above, the
petitioner is not entitled to be reinstated
in service.

Case Law discussed:
1999(82) FLR 627; (2005) 10 SCC 471; (2004)
8 SCC 200; (2007) 10 SCC 385; (2007) 9 SCC
755; (2013) 1 SCC 598; AIR 1964 SC 787.

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

1. Heard learned counsel for the
petitioner and Sri R.N. Singh, learned
counsel appearing on behalf of respondent
nos. 2, 3 and 4.

2. By means of the present writ
petition, the petitioner is challenging the
order dated 1.2.2013 passed by the
Regional Manager, Sarva U.P. Gramin
Bank, 803/B-1, Gwalior Road, Jhansi as
well as order dated 3.10.2013 passed by
the Secretary Board, Sarva U.P. Gramin
Bank, Head Office, Jhansi.

3. It appears that the petitioner has been
punished by order dated 28.5.2003 and he has
been terminated from the service against
which appeal filed by the petitioner has been
dismissed vide order dated 4.9.2003. The
petitioner has not challenged the aforesaid two
orders further and the aforesaid two orders
have attained finality.

4. It appears that the petitioner has
been acquitted in criminal proceeding vide
order dated 29.2.2012. After the acquittal, the
petitioner moved an application on 6.8.2012
for reinstatement, which has been refused
vide order dated 1.2.2013, which is being
challenged in the writ petition.

5. We do not find any merit in the
writ petition.