Allowed

Anurag Kumar Gupta S/O Late Jai Prakash Narain Gupta v. U.P. Sahkari Gramya Vikas Bank Ltd. Thru M.D. and Anr.

Allahabad HC24 Jul 2023WRIA/1994/2009

Case brief

AI extract

What is this about?

This writ petition claims compassionate appointment for the petitioner as legal heir to his father who died in harness. The court held that a fresh dismissal order passed during the father's absence, after the initial dismissal was quashed, was illegal. The petition was allowed, the impugned order quashed, and the respondent directed to consider the appointment claim.

What did the court decide?

The impugned order dated 31.08.2004 is quashed. Respondents directed to consider the petitioner for compassionate appointment within eight weeks.

Anurag Kumar Gupta S/O Late Jai Prakash… — Pension and Retirement Benefits | Allahabad HC (2023)

¶1

¶2

A.F.R.

¶3

Neutral Citation No. - 2023:AHC-LKO:48344

¶4

[R E S E R V E D]

¶5

Court No. - 5

¶6

Case :- WRIT - A No. - 1994 of 2009

¶7

Petitioner :- Anurag Kumar Gupta S/O Late Jai Prakash Narain Gupta Respondent :- U.P. Sahkari Gramya Vikas Bank Ltd. Thru M.D. And Anr. Counsel for Petitioner :- Y.S. Lohit Counsel for Respondent :- B.L. Verma,Balram Yadav

¶8

Hon'ble Irshad Ali,J.

¶9

1. Heard Sri Y.S. Lohit, learned counsel for the petitioner and Sri Balram Yadav, learned counsel for the respondent(s).

¶10

2. By means of present writ petition, the petitioner has prayed for issuance of a writ, order or direction in the nature of mandamus commanding the respondents to provide compassionate appointment to the petitioner as per his educational qualifications under the provisions of Regulation 104 of U.P. Co-operative Societies Employees Service Regulations, 1975 in place of his father, whose civil death has been declared on 30.04.2008 by the competent court of law with a further prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 31.08.2004 contained as Annexure-19 to the writ petition with a further prayer to issue a writ, order or direction in the nature of mandamus commanding the respondents to treat the petitioner's father as reinstated in service till the date of his civil death i.e. on 30.04.2008 as declared by competent authority of law and to issue a follow up direction to the

¶11

¶12

respondents to pay the arrears of salary and allowances and other consequential benefits to his legal heirs.

¶13

3. Brief facts giving rise to the present writ petition are as under:

¶14

Sr. No.	Relevant Facts of the Case
a.	Father of the petitioner was appointed on 03.09.1971 on the post of Lekha Lipik / Ankik i.e. Account Clerk i.e. Class-III Post at Bansedeeh Branch of U.P. Sahkari
	Gramya Vikas Bank Ltd. (for short, "the Bank").
	Thereafter, he was posted as Head Accountant at 10, Mall Avenue, Lucknow Branch.
b.	He was placed under suspension vide order dated 01.03.1990 on 02.03.1990 by the District Manager of the Bank. Later on, he was dismissed from service vide order dated 08.06.1995.
c.	The said order was challenged in Writ Petition No.2891 (S/S) of 1995 before this Court, wherein aforesaid order of dismissal dated 08.06.1995 was quashed vide order dated 01.09.1995 imposing cost of Rs.1000/- upon the respondents leaving it open to pass a fresh order strictly in accordance with law.
d.	On 27.01.1997, father of the petitioner went to the Headquarter of the Bank at 10, Mall Avenue, Lucknow
	to receive the subsistence allowance but he did not return back to home. Cousin of father of the petitioner -
	i.e. Sri Vinod Kumar Gupta lodged a first information
	report (for short, "FIR") to the this effect in Police
	Station Hussainganj, District Lucknow but neither FIR
	was lodged nor anything was done in furtherance
	thereof. Thereafter, the FIR was lodged bycompetent

¶15

¶16

	Court of Law under Section 156(3)Cr.P.C.
e.	An advertisement to this effect was also telecasted on Doordarshan in furtherance of application on prescribed format on 29.03.1997, which was broadcasted on All India Radio in furtherance of application on prescribed format dated 09.07.1997 submitted by petitioner's father's cousin Sri Vinod Kumar Gupta.
f.	An application was sent by petitioner's mother for payment of amount payable to her husband as well as
	follow up payment to be made to the heirs on
	13.03.2000, whereupon the General Manager (Administration) of the Bank asked for the copy of FIR, the certificate of thepolice and an indemnitybond.
g.	In pursuance thereof, all the documents were submitted by mother of the petitioner, which was followed by a reminder sent in the month of November, 2011.
h.	In Suit No.66/2007, the Civil Judge, (Junior Division), Muhammadabad, District Ghazipur gave a judgment on 30.04.2008 declaring the civil death of father of the petitioner bya decree dated 14.05.2008.
i.	On the basis of said judgment and decree, Nagar Palika Parishad, Muhammadabad, District Ghazipur issued the death certificate on 02.06.2008 mentioning civil death ofpetitioner's father on 30.04.2008.
j.	Thereafter, the petitioner preferred several applications requesting for appointment on compassionate ground but no heed waspaid to his requests.
k.	On 07.04.2009, this Court hearing the writ petition for appointment on compassionate ground made query as to whether the entitlement for compassionate appointment maysubsist on the basis of date of declaration of civil

¶17

¶18

death of petitioner's father by learned Civil Judge or this entitlement will stand mitigated in view of the fact that he and other family members subsisted for a long period since disappearance of his father - Lt. Sri Jai Prakash Narain Gupta i.e. since 27.01.1997. In reply, learned counsel for the respondents passed a copy of the order dated 31.08.2004 submitting that petitioner's father was dismissed from service vide order dated 31.08.2004, therefore, there was no occasion to consider the appointment under Regulation 104 of the Regulations. l. The order dated 31.08.2004 states that Special Appeal No.258 (S/B) of 1995 was dismissed on 05.07.2001 with liberty to hold fresh inquiry from the stage of error committed in disciplinary proceedings but the headquarters started disciplinary proceedings by suspending the petitioner again pursuant to order dated 08.11.1995 and the Regional Manager, Lakhimpur Kheri was appointed as Enquiry officer to hold the disciplinary proceeding vide order dated 01.01.2002, who fixed 3 dates but Sri Jai Prakash Narain Gupta did not come and by last opportunity, he got a notification / information published in local daily news paper on 11.03.2004 requiring to submit explanation, statement and documents within 10 days and as within ten days he has not presented himself, the inquiry officer submitted the enquiry report on the basis of documents and witnesses.

¶19

m. While serving copy of order dated 31.08.2004 on 08.05.2009, show cause notice and enquiry report was not served to the petitioner nor the same has been

¶20

¶21

served to him or his family member till date.

¶22

n. Being aggrieved by the act and action of the respondents in not grant appointment on compassionate ground, the present writ petition has been filed before this Court.

¶23

4. Submission of learned counsel for the petitioner is that there was no occasion to suspend petitioner's father, as it was not covered under fresh inquiry from the stage of error committed in disciplinary proceeding that too with retrospective effect of about six years. He submitted that the enquiry officer's hasty action is apparent from fixing three dates within 37 days and again only 10 day's time from publication of notification in daily newspapers. It is also apparent from General Manager's letter dated 13.03.2000 that petitioner's father disappeared on 27.01.1997 and her mother claimed appointment in the vent of disappearance of her husband.

¶24

5. He further submitted that the respondents issued fabricated show cause notice dated 28.01.2004 after knowing the fact that recipient is not available. He submitted that the inquiry report was prepared mere as a paper work to justify the impugned order, which is apparently perverse in nature as it does not deal the statements of any witnesses or the findings arrived at in this regard.

¶25

6. He next submitted that the whole exercise was done by the respondents with ulterior motive to frustrate the claim of petitioner's mother.

¶26

7. He further submitted that claim of petitioner's mother was not considered even after declaration of civil death of petitioner's father by judgment dated 30.04.2008 and decree dated 14.05.2008 issued by the Civil Judge (Junior Division) and the death certificate issued by the Nagar Palika Parishad, Muhammadabad,

¶27

¶28

District Ghazipur on 02.06.2008 mentioning the civil death of petitioner's father to be 30.04.2008.

¶29

8. He submitted that order of dismissal of service of petitioner's father dated 08.06.1995 was quashed by this Court in Writ Petition No.2891 (S/S) of 1995 vide order dated 01.09.1995 imposing cost of Rs.1000/- upon the respondents leaving it open to pass a fresh order strictly in accordance with law.

¶30

9. He further submitted that the order dated 01.09.1995 was subject matter of challenge in Special Appeal No.258 (S/B) of 1995, which was dismissed vide order dated 05.07.2001 with liberty to hold fresh inquiry from the stage of error committed in disciplinary proceedings but the respondents started disciplinary proceedings by suspending the petitioner again pursuant to order dated 08.11.1995.

¶31

10. He next submitted that all the exercise was done by the respondents only to satisfy the statutory requirement, which was missing while passing of judgment and order dated 01.09.1995 and to refer the matter to U.P. Co-operative Institutional Service Board, Lucknow.

¶32

11. He lastly submitted that the petitioner being legal heir of his father i.e. Lt. Sri Jai Prakash Narain Gupta is entitled for appointment on compassionate ground under Regulation 104 of U.P. Co-operative Societies Employees Service Regulations, 1975 and other consequential benefits. In support of his submissions, he placed reliance upon following judgments:

¶33

a) Ashwani Kumar Singh Vs. U.P. Public Commission and others; (2003) 11 SCC 584.

¶34

b) Malaya Nanda Sethy Vs. State of Orissa and others; 2022 SCC OnLine SC 684.

¶35

¶36

12. On the other hand, learned counsel for the respondent(s) submitted that father of the petitioner - Lt. Jai Prakash Narayan Gupta was working in the District Office of respondents as Accountant and committed following irregularities for which he got suspended:

¶37

a) attending the office in drunken position,

¶38

b) not taking interest in functioning of the bank,

¶39

c) absenting from duties without leave,

¶40

d) not performing duties as per schedule,

¶41

e) misuse of government property,

¶42

f) embezzlement of public money.

¶43

13. He submitted that during enquiry, the aforesaid irregularities were found proved against him and as a result he was dismissed from service vide order dated 08.06.1995, against which father of the petitioner preferred Writ Petition No.2891 (S/ S) of 1995 before this Court and the order dated 08.06.1995 was quashed by this Court vide order dated 01.09.1995 with a liberty to the respondents to pass a fresh order in accordance with law. Against the said order, respondents filed Special Appeal No.258 (S/B) of 1995, which was dismissed vide order dated 05.07.2001 leaving it open to hold fresh inquiry in accordance with law from the stage the fault has occurred. Thereafter, the inquiry proceeding was again started and father of the petitioner was served with inquiry report and related documents but he did not contested his case and as a result thereof, on the basis of available evidences, father of the petitioner was dismissed from service vide order dated 31.08.2004. In the meantime, petitioner's father got missed and dead and the petitioner has filed the present writ petition for

¶44

¶45

grant of appointment on compassionate ground, however, the request is not acceptable in view of the fact that his father was dismissed from service w.e.f. 31.08.2004 and the petitioner is not entitled for any relief by this Court. In support of his submissions, he placed reliance upon a judgment in the case of Fertilizers and Chemicals Travancore Ltd. & Ors. Vs. Anusree K.B.; 2022 LiveLaw (SC) 819 : Civil Appeal No.6958 of 2022, order dated 30.09.2022 .

¶46

14. In reply to submissions advanced by learned counsel for the respondents, learned counsel for the petitioner on the basis of rejoinder affidavit submitted that as respondents were aware about missing of petitioner's father, there was no occasion to serve the inquiry report upon him and the words "but he did not contest his case", as narrated in paragraph-9 of the counter affidavit, is sufficient in itself to prove that petitioner's father was not present in the disciplinary proceeding, therefore, the impugned order dated 31.08.2004 is a nullity in the eyes of law and is not sustainable.

¶47

15. He further submitted that the special appeal preferred by the respondents was dismissed providing liberty to hold fresh inquiry from the stage of error occurred in the disciplinary proceeding, however, the said liberty was obtained by the respondents by concealment of relevant fact that father of the petitioner was missing since year 1997 and in paragraph-9 of counter affidavit, the respondents have deliberately mentioned the word "in the meantime" in lieu of "since the year 1997" i.e. the year from which the petitioner's father was missing. As such, after dismissal of special appeal, father of the petitioner stood reinstated in service for all practical purposes and the petitioner

¶48

¶49

being his legal heir, is entitled for the reliefs, as prayed in the writ petition.

¶50

16. In reply to the aforesaid submissions, learned counsel for the respondents submitted that since father of the petitioner did not appear on the dates fixed in the disciplinary proceeding, the enquiry officer submitted the enquiry report on the basis of documents present before him.

¶51

17. He further submitted that father of the petitioner was under suspension during earlier disciplinary proceeding and after quashing of said order, in continuation of the earlier enquiry, he was again continued under suspension for further fresh enquiry, therefore, there is no illegality in the impugned order and the same is just and valid.

¶52

18. He next submitted that after submission of enquiry report by the enquiry officer, a show cause notice was issued to father of the petitioner as per provisions of Regulation 84(iii) of U.P. Cooperative Societies Employees Service Regulations, 1976 as well as Rule 73(3) of U.P. Rajya Sahkar Gram Vikas Bank Employees Srvice Rules, 1976 and when the said notice was returned by the petitioner, a press note was issued in daily newspaper, namely, Hindustan for publication, which was published on 11.03.2004 and after publication of show cause notice, it was treated that the same has been served upon him and thereafter, the impugned order of dismissal has been passed.

¶53

19. He submitted that the impugned order dated 31.08.2004 was passed following the procedure prescribed under regulations and rules of the respondent - Bank, as the charge against the petitioner was found fully proved against him. He also submitted that neither petitioner, nor his mother or any other family member

¶54

¶55

appeared before the enquiry officer to disapprove the charges levelled against him.

¶56

20. He submitted that if the petitioner and his mother were known that Lt. Sri Jai Prakash Narayan Gupta was not alive, they failed to discharge their legal duties and obligations and thus, the writ petition being devoid of merit is liable to be dismissed and since father of the petitioner was dismissed from service, the claim of the petitioner for appointment on compassionate ground is not tenable in the eyes of law.

¶57

21. In reply to the aforesaid submissions advanced by learned counsel for the respondents, learned counsel for the petitioner submitted that though the petitioner and his mother failed to discharge their legal duty and obligations, there was no specific denial in the counter affidavit to the amended writ petition dated 21.11.2016, wherein it has been mentioned that the General Manager, U.P. Sahkari Gramya Vikas Bank Ltd., Lucknow asked petitioner's mother vide letter dated 13.03.2000 to place the F.I.R., police certificate and nominee / dependents name for the purpose of payment of applicable benefits. Meaning thereby, he was well aware about the missing and death of petitioner's father.

¶58

22. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as the case laws cited by learned counsel for the parties and the rules applicable to this case.

¶59

23. To resolve the controversy involved in the matter, relevant rules and paragraphs of the judgments relied upon by learned counsel for the parties are being quoted below:

¶60

➔ Regulation 104 of U.P. Co-operative Societies Employees Service Regulations, 1975:

¶61

¶62

(i) In case an employee of co-operative society, who is either permanent in his appointment or if temporary, who has been recruited in accordance with the provisions of the Uttar Pradesh Cooperative Societies Employees Service Regulations, 1975 and has been holding his post for a minimum continuous period of three years dies in harness after the commencement of these Regulations, one member of his family, who is not already employed under the Central Government or a State Government or a Corporation or an undertaking owned or controlled by the Central Government or a State Government, shall on making an application for the purpose, be given a suitable employment under the society concerned provided such member possess the minimum educational qualifications prescribed for the post and is otherwise fit for appointment thereto. Such employment shall be given to the said member without delay and as far as possible, under the same society in which the deceased servant was employed at the time of his death.

¶63

(ii) ....................................

¶64

(iii)

¶65

(iv) Notwithstanding anything contained in clause (i) of Regulation 15, it shall be open to the Board to whom the case shall be referred by the appointing society, to dispense with the procedural requirements of selection, such as written test or interview by a selection committee, and accord its approval to the appointment of the candidate after satisfying itself that the candidate will be able to maintain the minimum standard of efficiency expected of him for the post in question, and that the requirements of Regulation 9 and 14 are fulfilled.

¶66

(v) Where more than one members of the family of the deceased employee seek employment under this regulation, the Board shall decide, keeping in view the overall interest of the family of the deceased employee, particularly the widow and the minor members thereof, which of the members should be given employment under the provisions

¶67

¶68

of this regulation. The decision of the Board in the matter shall be final.

¶69

Note - The family, for purposes of this regulation, shall include the wife / husband, sons and unmarried or widowed daughters of the deceased employee".

¶70

➔ Judgments relied upon by learned counsel for the petitioner:

¶71

a) Ashwani Kumar Singh (Supra):

¶72

10. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are no to be construed as statutes. To interpret words, phrases and provisions of statute, it may become necessary for Judges to embark into lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (AC at 9.761) Lord MeDermott observed: (All ER p. 14 C-D)

¶73

"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J, as though they were part of an /- ct of parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge......"

¶74

11. In Home Officer V. Dorset Yacht Co., Lord Reid said, "Lord Atkin's speech.........is not to be treated as if it was a statute definition. It will require qualification in new circumstances.(All ER p. 297 g-h). Megarry, J in Shepherd Homes Ltd. v. Sandham, (No. 2) observed: (All ER p. 1274 d-e) "One must not, of course, construe even a reserved judgment of Russell, L.J. as if it were an Act of

¶75

¶76

Parliament." In Herrington v. British Railways Board, Lord Morris said : (All ER p. 761 c)

¶77

"There is always peril in treating the words of a speech or judgment as though they are words in legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."

¶78

b) Malaya Nanda Sethy (Supra):

¶79

15. In view of the above discussion and for the reasons stated above, the impugned judgment and order passed by the High Court is hereby quashed and set aside. The respondents are directed to consider the case of the appellant for appointment on compassionate grounds under the 1990 Rules as per his original application made in July, 2010 and if he is otherwise found eligible to appoint him on the post of Junior Clerk. The aforesaid exercise shall be completed within a period of four weeks from today. However, it is observed that the appellant shall be entitled to all the benefits from the date of his appointment only. The present appeal is accordingly allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.

¶80

16. Before parting with the present order, we are constrained to observe that considering the object and purpose of appointment on compassionate grounds, i.e., a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service and the basis or policy is immediacy in rendering of financial assistance to the family of the deceased consequent upon his untimely death, the authorities must consider and decide such applications for appointment on compassionate grounds as per the policy prevalent, at the earliest, but not beyond a period of sic months from the date of submission of such completed applications.

¶81

17. We are constrained to direct as above as we have found that in several cases, applications for appointment on compassionate grounds are not attended in time and are kept pending for years together. As a result, the applicants in several cases

¶82

¶83

have to approach the concerned High Courts seeking a writ of Mandamus for the consideration of their applications. Even after such a direction is issued, frivolous or vexatious reasons are given for rejecting the applications. Once again, the applicants have to challenge the order of rejection before the High Court which leads to pendency of litigation and passage of time, leaving the family of the employee who dies in harness in the lurch and in financial difficulty. Further, for reasons best known to the authorities and on irrelevant consideration, applications made for compassionate appointment are rejected. After several years or are not considered at all as in the instant case.

¶84

18. If the object and purpose of appointment on compassionate grounds as envisaged under the relevant policies or the rules have to be achieved then it is just and necessary that such applications are considered well in time and not in a tardy way. We have come across cases where for nearly two decades the controversy regarding the application made for compassionate appointment is not resolved. This consequently leads to the frustration of the very policy of granting compassionate appointment on the death of the employee while in service. We have, therefore, directed that such applications must be considered at an earliest point of time. The consideration must be fair, reasonable and based on relevant consideration. The application cannot be rejected on the basis of frivolous and for reasons extraneous to the facts of the case. Then and then only the object and purpose of appointment on compassionate grounds can be achieved."

¶85

➔ Judgment relied upon by learned counsel for the respondent(s) :

¶86

➔ Fertilizers and Chemicals Travancore Ltd. & Ors. (Supra):

¶87

"9. .....................................................

¶88

¶89

9.1 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the respondent shall not be entitled to the appointment on compassionate ground on the death of her father, who died in the year 1995. After a period of 24 years from the death of the deceased employee, the respondent shall not be entitled to the appointment on compassionate ground. If such an appointment is made now and/or after a period of 14/24 years, the same shall be against the object and purpose for which the appointment on compassionate ground is provided.

¶90

9.2 Under the circumstances, both, the learned Single Judge as well as the Division Bench of the High Court have committed a serious error in directing the appellants to reconsider the case of the respondent for appointment on compassionate ground. The impugned judgment and order passed by the High Court is unsustainable."

¶91

24. On perusal of aforesaid judgments, in the case of Ashwani Kumar Singh (Supra), it is apparent that the appellants before the Hon'ble Apex Court appeared at Combined State Services Examination in 1987 for appointment as Treasury Officer / Accounts Officer / Assistant Accounts Officer. On the basis of requisition sent by the State Government for 40 vacancies, a merit list was prepared in 1989. In the merit list, appellant AK was place at serial No.52 while appellant BN was placed much below. Appellant AK was later on appointed as Assistant Accounts Officer when some of the selected candidates did not join the service.

¶92

25. In 1992, writ petitions were filed by the appellants on the ground that vacancies which arose on account of selected candidates not joining should have been filled up from the merit

¶93

¶94

list and that having not been done, the appointments made subsequently were illegal. The claim was resisted by the State and the Commission who took the stand that there was no waiting list as such and the vacancies were carried forward to the subsequent period as required in law and persons had already been appointed on the basis of subsequent examination. The petitions were rejected by the High Court and hence the appeal was filed before Hon'ble Supreme Court of India. While dismissing the appeal, Hon'ble Apex Court has held that it is not a rule of universal application that whenever vacancy exists, persons who are in the merit list perforce have to be appointed. Much would depend upon the statutory provisions governing the field. Jai Narain Case, (1996) 1 SCC 332 on which reliance has been place by the appellants was rendered in a different factual and legal background, and related to non-appointment of persons belonging to the reserved category.

¶95

(i) Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark upon lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In circumstantial flexibility, one additional or different fact may make a world of difference between

¶96

¶97

conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

¶98

(ii) It is on record that a policy decision was taken to appoint candidates who had opted for Treasury Officer / Accounts Officer if their names were included in the first 40 of the merit list. Admittedly, the appellants were placed below in the merit list. Besides, the plea that there is no logic for such fixation is also without substance. If the employer fixes a cut-off position, same is not to be lightly tinkered with unless it is totally irrational or tainted with mala fides. Employer in its wisdom may consider a particular range of selection to be appropriate. It has not been shown as to how the fixation is irrational, much less mala fide. Additionally, it is noticed that the unfilled posts were carried forward to the next year and have been filled up on the basis of selection made by the Commission. Accepting the prayer of the appellants would mean that the position which has assumed a sort of finality for more than a declared would be unsettled. Persons who have been appointed on the basis of the subsequent examination have to give way to appellant AK. Though they had been impleaded but did not appear, it does not mean that something which is not permissible in law has to be done. It would not be fair to disturb the prevailing position.

¶99

(iii) AK had been subsequently promoted as Accounts Officer. But he cannot claim seniority over those who were subsequently appointed since he had been promoted later on. In the absence of any statutory prescription, persons who has been appointed to the higher posts earlier would be logically senior to him.

¶100

26. In the case of Malaya Nanda Sethy (Supra), father of the appellant was working as an Assistant Sub - Inspector in Excise Department. He passed away on 02.01.2010 while in service. On

¶101

¶102

the death of his father, the appellant applied for his appointment as a Junior Clerk on compassionate ground under the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 in July, 2010. It was the case on behalf of the appellant that his mother was unable to undertake a government job due to her medical condition. The said application was sent to the office of the Excise Commissioner, Orissa, Cuttack vide letter dated 03.08.2011. Thereafter, the said application was forwarded to teh Additional Secretary to the Government, Excise Department on 21.09.2011. The said application was not attended to by the Excise Department for a considerable period of five years. After a period of five years, the Additional Secretary vide letter /communication dated 09.09.2016 asked the Collector, Ganjam to furnish a fresh report regarding the financial condition of the family of the deceased government servant. Simultaneously, a report was also called for from CDMO, Ganjam to place the matter of mother of the appellant before the MEdical Board for proper examination to ascertain whether her inability to perform the government job continues. The CDMO, Ganjam constituted a Medical Board and examined the mother of the appellant and furnished a report to the Additional Secretary on 01.11.2016 stating that she was unfit for government job. The CDMO, Ganjam furnished another report dated 06.02.2017 to the same effect. It appears that thereafter a report from Tehsildar, Bellaguntha, which is the native place of the appellant, was also called for to ascertain financial condition and the Tehsildar submitted its report vide letter dated 28.10.2017 stating that the family income of the appellant from all sources does not exceed ceiling of Rs.72,000/- per annum.

¶103

(i) Despite the above, the application of the appellant herein for appointment on compassionate ground was kept pending

¶104

¶105

under consideration. However, before any further order appointing the appellant on compassionate ground under the 1990 Rules came to be passed, the 1990 Rules came to be replaced by the new Rules, namely, Odisha Civil Services (Rehabilitation Assistance) Rules, 2020, issued vide notification dated 17.02.2020. Under the 2020 Rules, one family member of deceased government servant would be appointed on compassionate grounds to "Group D" base level post. Therefore, the application of the appellant being sent to the Collector for taking necessary action under the 2020 Rules by the office of the Excise Commissioner, Odisha, vide communicated dated 26.04.2021.

¶106

(ii) Feeling aggrieved and dissatisfied with communication dated 26.04.2021, by which case of the appellant was directed to be considered under 2020 Rules, the appellant preferred a writ petition before the High Court. Before the High Court, it was specific case of the appellant that the policy prevalent at the time when teh application for compassionate ground was made, shall be applicable and not the subsequent scheme prevalent at the time of deciding the application. A number of decisions of Hon'ble Apex Court were relied upon. However, by the impugned judgment and order and relying upon and / or considering the decision in the case of N.C. Santosh Vs. State of Karnataka; (2020) 7 SCC 617, the High Court has dismissed the said writ petition by observing that the claim should be considered as per the amended rules that were prevalent at the time of consideration of application and not the Rules that were prevalent on the death of government servant.

¶107

(iii) Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court dismissing the writ

¶108

¶109

petition and holding that the case of the appellant shall be governed by the 2020 Rules, the instant appeal was filed, which was allowed quashing the impugned judgment and order and a direction was issued to the respondents to consider the case of the appellant for appointment on compassionate grounds under 1990 Rules, as per his original application made in July, 2010 and if he is otherwise found eligible to appoint him on the post of Junior Clerk. The aforesaid exercise was directed to be completed within a period of four weeks from the date of order. It was also observed that the appellant shall be entitled to all the benefits from the date of his appointment only.

¶110

27. In the case of Fertilizers and Chemicals Travancore Ltd. & Ors. (Supra), father of the respondent was employed as a loading Helper with the appellant No.1 and expired while on duty on 19.04.1995. At the time of death of the employee, wife of the deceased employee was serving and therefore, was not eligible for appointment on compassionate ground considering the scheme for employment of dependents of the employees dying in harness. After a period of 14 years, after the death of deceased employee, the respondent - daughter of deceased employee made a representation seeking appointment on compassionate basis. Her application for compassionate appointment was rejected on 12.02.2018 on the ground that her name was not in the list of dependents submitted by the deceased employee and that the policy was to give employment to widow or son or unmarried daughter of the deceased employee.

¶111

(i) The rejection of the application for compassionate appointment was the subject matter of challenge in writ petition before the learned Single Judge. Vide order dated 13.11.2019, learned Single Judge disposed of the writ petition with the

¶112

¶113

direction to the appellants to reconsider the application of respondent within Clause 1 of the Scheme.

¶114

(ii) On 12.12.2019, after reconsideration, the appellant against rejected the application of the respondent for appointment on compassionate ground on the ground that it did not meet the primary test of scheme that the deceased employee should be the "sole bread winner of his family", since his wife was gainfully employed with the Kerala State Health Services Department at the time of his death and also on the ground that 24 years have lapsed since the date of death of the deceased employee.

¶115

(iii) Feeling aggrieved and dissatisfied with order dated 13.11.2019 rejecting the application of the respondent for appointment on compassionate ground, the respondent filed a writ petition before the High Court, which was allowed vide order dated 22.01.2023 directing the appellants to reconsider the respondent's claim strictly in terms of the observations and directions passed in the order of learned Single Judge dated 13.11.2019 passed in earlier round of litigation.

¶116

(iv) The judgment and order passed by learned Single Judge was subject matter of appeal before Division Bench of High Court by way of the writ appeal, which has been dismissed vide order impugned, which has been challenged before the Court. The appeal has been allowed and the judgments and orders passed by learned Single Judge as well as Division Bench of High Court were set aside holding that both, the learned Single Judge as well as Division Bench of High Court have committed a serious error in directing the appellants to reconsider the case of respondent for appointment on compassionate ground.

¶117

¶118

28. In the case in hand, father of the petitioner was working on the post of Lekha Lipik / Ankik i.e. Account Clerk i.e. Class-III Post at Bansedeeh Branch of U.P. Sahkari Gramya Vikas Bank Ltd. Thereafter, he was posted as Head Accountant at 10, Mall Avenue, Lucknow Branch. He was placed under suspension and was dismissed from service vide order dated 08.06.1995. The said order was challenged in Writ Petition No.2891 (S/S) of 1995 before this Court, wherein aforesaid order of dismissal dated 08.06.1995 was quashed vide order dated 01.09.1995 imposing cost of Rs.1000/- upon the respondents leaving it open to pass a fresh order strictly in accordance with law. On 27.01.1997, father of the petitioner got missed and an FIR in this regard was registered by the Competent Court of law under Section 156(3) Cr.P.C. and news to this effect was also telecasted on Doordarshan and was broadcasted on All India Radio.

¶119

29. Subsequently, a request was made by petitioner's mother i.e. wife of Lt. Sri Jai Prakash Narain Gupta for payment of amount payable to her husband as well as follow up payment to be made to the heirs on 13.03.2000, whereupon the General Manager (Administration) of the Bank asked for the copy of F.I.R., the certificate of the police and indemnity bond.

¶120

30. Later on, in Suit No.66/2007, the Civil Judge, (Junior Division), Muhammadabad, District Ghazipur gave a judgment on 30.04.2008 declaring the civil death of father of the petitioner by a decree dated 14.05.2008 and on the basis of said judgment and decree, Nagar Palika Parishad, Muhammadabad, District Ghazipur issued the death certificate on 02.06.2008 mentioning civil death of petitioner's father on 30.04.2008. Thereafter, the petitioner preferred several representations to the respondents

¶121

¶122

requesting for appointment on compassionate ground but no heed was paid to his requests.

¶123

31. On 07.04.2009, this Court hearing the writ petition for appointment on compassionate ground made query as to whether the entitlement for compassionate appointment may subsist on the basis of date of declaration of civil death of petitioner's father by learned Civil Judge or this entitlement will stand mitigated in view of the fact that he and other family members subsisted for a long period since disappearance of his father - Lt. Sri Jai Prakash Narain Gupta i.e. since 27.01.1997 and in its reply, learned counsel for the respondents produced a copy of the order dated 31.08.2004 before this Court submitting that petitioner's father was dismissed from service vide order dated 31.08.2004, therefore, there was no occasion to consider the claim of appointment under Regulation 104 of U.P. Co-operative Societies Employees Service Regulations, 1975.

¶124

32. The order dated 31.08.2004 discloses that Special Appeal No.258 (S/B) of 1995 filed by the respondents was dismissed on 05.07.2001 with liberty to hold fresh inquiry from the stage of error committed in disciplinary proceedings but they started disciplinary proceedings by suspending the petitioner again pursuant to order dated 08.11.1995.

¶125

33. It is the case of the respondents that the Regional Manager, Lakhimpur Kheri was appointed as Enquiry officer to hold the disciplinary proceeding vide order dated 01.01.2002, who fixed three dates but Lt. Sri Jai Prakash Narain Gupta did not presented himself and by way of last opportunity, a notification / information was published in local daily news paper on 11.03.2004 requiring to submit explanation, statement and documents within 10 days and when aforesaid period, father of

¶126

¶127

the petitioner has not presented himself, the inquiry officer submitted the enquiry report on the basis of documents and witnesses.

¶128

34. On overall consideration of material on record as well as facts and circumstances of the case, it is apparent that there was no occasion for the respondents to suspend petitioner's father again and to start the inquiry with retrospective effect, as it was not covered under fresh inquiry which was directed to be started from the stage of error committed in disciplinary proceeding.

¶129

35. It is also clear from General Manager's letter dated 13.03.2000 that petitioner's father disappeared on 27.01.1997 and her mother claimed appointment in the vent of disappearance of her husband and copy of F.I.R., certificate of the police and indemnity bond was called for.

¶130

36. Father of the petitioner got missed on On 27.01.1997 and his civil death was declared vide judgment dated 30.04.2008 / decree dated 14.05.2008 followed by death certificate issued by the Nagar Palika Parishad mentioning the civil death of petitioner's father to be on 30.04.2008.

¶131

37. In the meantime, petitioner's mother and the petitioner have made several representations to the respondents to consider the claim for appointment on compassionate ground and for payment of dues of husband / father.

¶132

38. In regard to objections taken by learned counsel for the respondent - Bank that a show cause notice was issued to father of the petitioner as per provisions of Regulation 84(iii) of U.P. Cooperative Societies Employees Service Regulations, 1976 as well as Rule 73(3) of U.P. Rajya Sahkar Gram Vikas Bank Employees Service Rules, 1976 and when the said notice was returned by the

¶133

¶134

petitioner, a press note was issued in daily newspaper, namely, Hindustan for publication, which was published on 11.03.2004 and after publication of show cause notice, it was treated that the same has been served upon him and thereafter, the impugned order of dismissal has been passed, it is considerable that though the petitioner and his mother failed to discharge their legal duties and obligations, however, there was no specific denial that the General Manager, U.P. Sahkari Gramya Vikas Bank Ltd., Lucknow asked petitioner's mother vide letter dated 13.03.2000 to place copy of the F.I.R., police certificate and nominee / dependents name for the purpose of payment of applicable benefits. Meaning thereby, respondents were well aware about the missing and death of petitioner's father.

¶135

39. In regard to query made by this Court while hearing the writ petition for appointment on compassionate ground as to whether the entitlement for compassionate appointment may subsist on the basis of date of declaration of civil death of petitioner's father by learned Civil Judge or this entitlement will stand mitigated in view of the fact that he and other family members subsisted for a long period since disappearance of his father - Lt. Sri Jai Prakash Narain Gupta i.e. since 27.01.1997, it is clear that father of the petitioner got missed on 27.01.1997 and his civil death was declared by competent Court of law to be 30.04.2008. It is also evident from record that between aforesaid period, several communications were made by petitioner and his mother in regard to grant of appointment on compassionate ground as well as for payment of consequential benefits, however, no action has been taken by the respondents and the claim set up by the petitioner has been ignored.

¶136

¶137

40. The object and purpose of appointment on compassionate grounds, i.e., a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service and the basis or policy is immediacy in rendering of financial assistance to the family of the deceased consequent upon his untimely death, the authorities must consider and decide such applications for appointment on compassionate grounds as per the policy prevalent.

¶138

41. As has been found in several cases, the applications for appointment on compassionate grounds are not attended in time and are kept pending for years together. As a result, the applicants in several cases have to approach the concerned High Courts seeking a writ of Mandamus for the consideration of their applications. Even after such a direction is issued, frivolous or vexatious reasons are given for rejecting the applications. Once again, the applicants have to challenge the order of rejection before the High Court which leads to pendency of litigation and passage of time, leaving the family of the employee who dies in harness in the lurch and in financial difficulty. Further, for reasons best known to the authorities and on irrelevant consideration, applications made for compassionate appointment are rejected. After several years or are not considered at all as in the instant case.

¶139

42. If the object and purpose of appointment on compassionate grounds as envisaged under the relevant policies or the rules have to be achieved, then it is just and necessary that such applications are considered well in time and not in a tardy way. I have come across cases where for nearly two decades the controversy regarding the application made for compassionate appointment is not resolved. This consequently leads to the frustration of the very

¶140

¶141

policy of granting compassionate appointment on the death of the employee while in service. Such applications must be considered at an earliest point of time. The consideration must be fair, reasonable and based on relevant consideration. The application cannot be rejected on the basis of frivolous and for reasons extraneous to the facts of the case. Then and then only the object and purpose of appointment on compassionate grounds can be achieved.

¶142

43. In view of reasons recorded above and in view of judgment relied upon by learned counsel for the petitioner in the case of Malaya Nanda Sethy (Supra), the judgment relied upon by learned counsel for the respondent is not attracted to the present facts and circumstances of the case.

¶143

44. The writ petition deserves to be allowed and is hereby allowed .

¶144

45. The impugned order dated 31.08.2004 contained as Annexure-19 is hereby quashed.

¶145

46. The respondents are directed to consider the case of petitioner for appointment on compassionate ground, as per his original application made and if he is otherwise found eligible to appoint him on the post. The aforesaid exercise shall be completed within a period of eight weeks from from the date of production of a certified copy of this order.

¶146

47. However, it is observed that the petitioner shall be entitled to all the benefits from the date of his appointment only.

¶147

48. There shall be no order as to costs.

¶148

Order Date :- 24.07.2023 Adarsh K Singh

¶149

Digitally signed by :- ADARSH KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench

Anurag Kumar Gupta S/O Late Jai Prakash Narain Gupta v. U.P. Sahkari Gramya Vikas Bank Ltd. Thru M.D. and Anr.

Case brief

What is this about?

What did the court decide?

Anurag Kumar Gupta S/O Late Jai Prakash Narain Gupta v. U.P. Sahkari Gramya Vikas Bank Ltd. Thru M.D. and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rajesh Kumar Pandey Vs U.P.Co Operative Sugar Mill Federation and Rana Pratap Marg

Committee of Management Vs State of U.P. through Secretary Secondary Education Govt. of

Manish Kumar Singh Vs State of U.P. Thro Secy. Madhyamik Edu. and 4 Ors.

Amita Singh and Ors. Vs Sri Prof. Piyush Ranjan the Vice Chancellor and Another

Vijay Laxmi Rai and Ors. Vs Prof. Piyush Ranjan the Vice Chanceloor and Another

Mohd.Usman Ali Vs State of U.P.Thr.Prin Secy Ministry of Welfare and Anors