# Yogendra Ram Chaurasiya v. State of U.P. and others

- **Citation:** (2002) 3 ILRA 691
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-09-10
- **Case number:** Special Appeal No. 319 of 1997
- **Bench:** S.K. Sen, C.J. R.K. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogendra-ram-chaurasiya-v-state-of-u-p-and-others-39964
- **Pages:** 5

## Headnote

High Court Rules- Chapter VIII Rule 5-
appointment under Dying in Harness
Rules- any appointment made under the
provisions of Dying in Harness Rules is to
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692 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
be treated as a Permanent appointment
and not a temporary appointment- the
provisions
of
U.P.
Temporary
Government servant (Termination of
Services) Rules 1975 will not apply to
such appointments. (Held in para 9)
Case law referred-
1991 (I) ALR 754, 1993 (I) LLJ 798, 1991 (II)
UPLBEC 995, 1991 (17) ALR 247

We hold that the appointment of the
appellant writ petitioner is to be treated
as permanent appointment and not a
temporary appointment. The nature of
appointment will not effect the writ
petitioner, even if the appellant writ
petitioner has accepted the terms and
conditions of the appointment which
mentioned as temporary appointment.
The
nature
of
appointment
of
the
appellant- writ petitioner having been
held to be permanent appointment, the
appellant-writ petitioner is entitled to
the
constitutional
safeguards
as
provided
in
Article
311
of
the
Constitution of India. In the present case
the procedure laid down in Article 311
(2) of the Constitution of India, has not
been followed before terminating the
service of the appellant- writ petitioner,
in as much as neither the appellant had
been informed about the charges leveled
against
him
nor
any
enquiry
was
conducted
before
terminating
his
services nor he was given opportunity of
hearing nor the authorities have invoked
any of the clauses mentioned in proviso
to Article 311 (2) of the Constitution of
India
for
dispensing
with
the
requirement of holding the enquiry.

## Text

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3 All] Yogendra Ram Chaurasiya V. State of U.P. and others
691
However, those stenographers who are in
the pay scale of Rs.250-425 but are
attached with the office of Head of Minor
Department placed in the pay scale of
Rs.1840-2400 shall be given revised pay
scale of Rs.570-1100. Thus, the pay scale
of Rs.570-1100 has been given to all
those stenographers who are attached with
the Head of Minor Department placed in
pay scale of Rs.1840-2400, Head of
Departments
excluding
Major
Department, District Magistrate, District
Judge,
Members
of
Tribunal
and
Chairman of Co-operative Tribunals.

9. It is not in dispute that the
Superintending Engineer with whom, the
appellant- writ petitioners have been
attached as stenographers has been
declared as Head of the Department for
the purpose of U.P. Fundamental Rules in
Part 1, and Part 2 and subsidiary Rules in
Part 3.

10. It is also not in dispute that the
Superintending
Engineer,
P.W.D.,
is
placed under the pay scale of Rs.18402400. Thus, the case of the appellant- writ
petitioners clearly fall within the aforesaid
sub-category and they are entitled to be
placed in the revised pay scale of Rs.5701100. The contention of the learned
standing counsel that the reference to pay
scale of Head of Minor Department, i.e.
1840-2400, is of no consequence, cannot
be accepted in as much as in the aforesaid
sub category of the stenographers, there
is specific mention that all Head of Minor
Department placed in the pay scale of
Rs.1840-2400 and stenographers attached
with such Head of Department, are
entitled to the revised pay scale of
Rs.570-1100.

11. In view of the aforesaid
discussions we hold that the learned
Single Judge was not justified in arriving
at conclusion that the revised pay scale of
Rs.570-1100 is applicable only to those
stenographers who are attached with the
District Judge, Members of Tribunal and
Chairman of Co-operative Tribunals. The
appellants- writ petitioners are, therefore,
entitled to be placed in the revised pay
scale of Rs.570-1100.

12. In the result, the Special Appeal
succeeds and the same alongwith writ
petition are allowed. The judgment and
order of the learned Single Judge is set
aside and the order dated 14.4.1982
passed
by
the
Deputy
Secretary
Government of U.P. in so far as it relates
to the fixation of revised pay scale of the
petitioners is quashed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.9.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGARWAL, J.

Special Appeal No. 319 of 1997

Yogendra Ram Chaurasiya
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri Prakash Padia

Counsel for the Respondents:
Sri Ravi Prakash Srivastava
S.C.

High Court Rules- Chapter VIII Rule 5-
appointment under Dying in Harness
Rules- any appointment made under the
provisions of Dying in Harness Rules is to
http://www.allahabadhighcourt.nic.in
692 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
be treated as a Permanent appointment
and not a temporary appointment- the
provisions
of
U.P.
Temporary
Government servant (Termination of
Services) Rules 1975 will not apply to
such appointments. (Held in para 9)
Case law referred-
1991 (I) ALR 754, 1993 (I) LLJ 798, 1991 (II)
UPLBEC 995, 1991 (17) ALR 247

We hold that the appointment of the
appellant writ petitioner is to be treated
as permanent appointment and not a
temporary appointment. The nature of
appointment will not effect the writ
petitioner, even if the appellant writ
petitioner has accepted the terms and
conditions of the appointment which
mentioned as temporary appointment.
The
nature
of
appointment
of
the
appellant- writ petitioner having been
held to be permanent appointment, the
appellant-writ petitioner is entitled to
the
constitutional
safeguards
as
provided
in
Article
311
of
the
Constitution of India. In the present case
the procedure laid down in Article 311
(2) of the Constitution of India, has not
been followed before terminating the
service of the appellant- writ petitioner,
in as much as neither the appellant had
been informed about the charges leveled
against
him
nor
any
enquiry
was
conducted
before
terminating
his
services nor he was given opportunity of
hearing nor the authorities have invoked
any of the clauses mentioned in proviso
to Article 311 (2) of the Constitution of
India
for
dispensing
with
the
requirement of holding the enquiry.

(Delivered by Hon'ble R.K. Agarwal, J.)

1. The present Special Appeal has
been filed by Yogendra Ram Chaurasiya
against the judgment and order dated
5.5.1997 passed by the learned Single
Judge, where the learned Single Judge has
dismissed the writ petition of the
appellant on the ground that the appellant-
writ petitioner was purely a temporary
employee and even for the short period he
was under employment there was several
complaint against him as is evident from
the perusal of annexures CA 1 to CA 7 to
the counter affidavit.

2. Briefly stated facts giving rise to
the present case are that the father of the
appellant- writ petitioner late Telhu
Baryee was working as a Lasker of 92
U.P. Battalion, N.C.C. at Ghazipur. He
died while he was in service. The
appellant writ petitioner being his son was
given appointment on compassionate
ground.
The
appellant
was
given
appointment
on
30.4.1994.
It
was
mentioned in the appointment order that
his appointment would be temporary
subject to the termination under U.P.
Temporary
Government
Servants
(Termination of Service) Rules 1976. The
appellant- writ petitioner accepted the
said appointment and consequently he
was posted as a Lasker of 92 UP
Battalion, N.C.C. at Ghazipur. It appears
that there was certain complaint against
him for which warning was also issued
and subsequently, vide order dated
23.3.1995, his services were terminated
under the provisions of U.P. Temporary
Government Servants (Termination of
Service) Rules 1975, while giving him
amount equivalent to the amount of his
pay plus allowance for the period of
notice of one calendar month. The
appellant writ petitioner challenged his
termination order dated 23.5.1995 in the
writ petition which has been dismissed by
the learned Single Judge vide the
impugned order under appeal.

3. We have heard Sri Prakash Padia
learned counsel for the appellant and Sri
Ravi Prakash Srivastava learned standing
counsel for the respondents.
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3 All] Yogendra Ram Chaurasiya V. State of U.P. and others
693
4. The learned counsel for the
appellant submits that the appointment of
the appellant was made on compassionate
grounds under the provisions of Dying in
Harness Rules, which appointment cannot
be treated as temporary appointment and
rather it was permanent appointment and,
therefore, the services could not have
been terminated under the provisions U.P.
Temporary
Government
Servants
(Termination of Service) Rules 1975. He
relied upon the decision in the case of
Ravi Karan Singh vs. State of U.P. and
others reported in 1991 (1) ALR 754. He
further
submitted
that
since
the
appointment
of
the
appellant-
writ
petitioner
is
to
be
a
permanent
appointment, his services could have been
terminated only after complying with the
provisions
of
Article
311
of
the
Constitution of India viz. after issuing
charge sheet, holding enquiry and giving
opportunity to defend his case. In the
alternative, he submitted that even if the
appointment
of
the
appellant
writ
petitioner is taken to be a temporary
appointment since the enquiry was
pending against him, and the order of
termination had been passed in the wake
of such an enquiry, the order of
termination is not simplicitor but casts
stigma and, therefore, it was necessary for
holding a full-fledged enquiry in which
opportunity of hearing should have been
given to the petitioner, and this having not
been done, the impugned order is illegal.

5. The learned standing counsel,
however, submitted that the appellant writ
petitioner was appointed purely on
temporary basis as would be clear from
the appointment letter itself and such
terms and conditions of the appointment
letter was accepted by the appellant- writ
petitioner hence he is estopped from
contending that his appointment was not a
temporary appointment but a permanent
one. He submitted that the appellant is not
entitled for the protection of constitutional
safe guards as provided under Article 311
of the constitution of India. He also
submitted that the services of the
appellant- writ petitioners had been
terminated simplicitor and there is no
stigma. According to him the termination
order has not been passed in the wake of
any enquiry pending against the appellant
writ petitioner but on review of his work
and conduct.

6. Having heard the learned counsel
for the parties, we find that in paragraph 3
of the writ petition the appellant- writ
petitioner had categorically stated that the
respondent
no.
3
therein,
issued
appointment letter to the petitioner on the
post of Lasker of 92 UP Battalion, N.C.C.
at Ghazipur under the provisions of Dying
in Harness Rules. The appointment letter
has been filed as Annexure-1 which itself
mentions as ' appointment of Dependent
of Deceased Employees". In the counter
affidavit
filed
by
Lt.
Col.
S.N.
Upadhyaya, respondent no. 3 in the writ
petition, the contents of para 3 of the writ
petition were not disputed. Thus, it is
established from the material on record,
that the appointment had been made on
compassionate
ground
under
the
provisions of Dying in Harness Rules.

7. The Division Bench of this Court
in the case of Ravi Karan Singh has held
that "an appointment under the Dying
in Harness Rules has to be treated as a
permanent appointment otherwise if
such appointment is treated to be a
temporary appointment, then it will
follow that soon after the appointment
the service can be terminated and this
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694 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
will nullify the very purpose of the
Dying in Harness Rule because such
appointment is intended to provide
immediate relief to the family on the
sudden death of the bread earner. We,
therefore, hold that the appointment
under Dying in Harness Rule is a
permanent appointment and not a
temporary appointment, and hence the
provisions
of
U.P.
Temporary
Government Servant (Termination of
Services) Rules 1975 will not apply to
such appointments."

8. The aforesaid matter was
considered by the Division Bench on
reference being made by a learned Single
Judge of this Court disagreeing with the
decisions in the cases of Budhi Sagar
Dubey vs. D.I.O.S., (1993 (1) LLJ 798),
Gulab Yadav Vs. State of U.P. and others
(1991 (2) UPLBEC 995) Dhrendra Pratap
Singh vs. D.I.O.S. and others (1991 (17)
ALR 24).

9. In view of the decision of this
Court in the case of Ravi Karan Singh
with which we respectfully agree, any
appointment made under the provisions of
Dying in Harness Rules is to be treated as
a permanent appointment and not a
temporary appointment. This is also clear
from
the
Government
order
dated
23.1.1976 filed as annexure 2 to the writ
petition wherein it has been mentioned
that the dependent of deceased employee
appointed on compassionate ground under
the provisions of Dying in Harness Rules
should not be retrenched even where the
strength of the employee is being reduced.
Thus, we hold that the appointment of the
appellant writ petitioner is to be treated as
permanent
appointment
and
not
a
temporary appointment. The nature of
appointment, will not effect the writ
petitioner, even if the appellant writ
petitioner has accepted the terms and
conditions of the appointment which
mentioned as a temporary appointment.
The nature of appointment of the
appellant- writ petitioner having been
held to be permanent appointment, the
appellant writ petitioner is entitled to the
constitutional safeguards as provided in
Article 311 of the Constitution of India. In
the present case the procedure laid down
in Article 311 (2) of the Constitution of
India, has not been followed before
terminating the services of the appellant
writ petitioner, in as much as neither the
appellant had been informed about the
charges leveled against him nor any
enquiry was conducted before terminating
his services nor he was given opportunity
of hearing, nor the authorities have
invoked any of the clauses mentioned in
provision to Article 311 (2) of the
Constitution of India for dispensing with
the requirement of holding the enquiry.

10. Since we have come to the
conclusion
that
the
appointment of
appellant- writ petitioner was a permanent
appointment, it is not necessary to go into
the question as to whether the order of
termination was simplicitor one or it casts
stigma or not.

11. In view of the foregoing
discussions, the order dated 25.3.1995
terminating the services of the appellant
writ petitioner and the order dated
5.5.1997 passed by the learned Single
Judge cannot be sustained and are hereby
set aside. The writ petition and the Special
Appeal stand allowed. However, the
parties shall bear their own costs.
---------
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3 All] Chandra Pratap Singh V. State of U.P. and others
695
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 3.9.2002

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 19751 of 1992

Chandra Pratap Singh
...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri S. Farman Ahmad Naqvi

Counsel for the Respondents:
Sri Vinaya Malviya
S.C.

Constitution of India- Article 226- The
petitioner would be entitled to possess a
second licence unless there is a valid
reason for not granting the same on
merits. In the present case, the District
Magistrate has not given any reason
whatsoever on merits but for the reason
that the Government order bars a person
to hold a second arms licence, - There
cannot be a blanket bar on possessing
two or more arms licences or weapons
by a person except for sufficient reasons.

Held in para 9

Having considered the submissions of
learned counsel for the parties and
having perused the record, I am of the
view that the impugned order dated
5.5.1992 of the District Magistrate,
Fatehpur is directed to reconsider the
case of the petitioner in the light of the
directions given and observations made
above. It is further directed that the
petitioner shall not be required to
deposit
his
pistol
till
the
District
Magistrate decides his application.

(Delivered by Hon'ble Vineet Saran, J.)

1. The petitioner was granted pistol
licence on 5.7.1975. Thus he possessed a
pistol. The licence was due for renewal in
1981 and the renewal applications of the
petitioner remained pending for one
reason or the other. It was only on
16.1.1990 that the District Magistrate
rejected the application of the petitioner
for renewal of the pistol licence, not on
merits but on the ground that the
application was filed after much delay
without
there
being
a
satisfactory
explanation for the same. Against the said
order of the District Magistrate, the
petitioner filed an appeal before the
Commissioner,
Allahabad
Division,
Allahabad. The appeal was also dismissed
on 29.5.1990. Challenging the said orders,
the petitioner filed writ petition no. 22751
of 1990, which was decided on 30.1.1991.
This Court ordered that the petitioner may
file a fresh application for grant of
licence, which was directed to be
considered and decided by the District
Magistrate within four months. The
petitioner was permitted by this Court to
continue to possess the pistol till disposal
of the application.

2. In pursuance of the aforesaid
order of this Court, the petitioner filed an
application on 18.4.1991 for grant of fresh
licence. The District Magistrate called for
a report from the police of the area but the
same was not submitted within the
stipulated
time.
By
virtue
of
the
provisions of Section 13 of the Indian
Arms Act, the District Magistrate then
proceeded to decide the application of the
petitioner without the police report. Vide
order dated 5.5.1992, relying on the
provisions of the Government order no.
1083 dated 13.03.1992, the District