Partly allowed

Virendra Kumar Yadav v. State of U.P.Thru.Prin.Secy.Nagar Vikas Lko. and Anr.

Allahabad HC17 Jan 2024WRIA/20944/2020

Case brief

AI extract

What is this about?

Court held compassionate appointment under dying-in-harness rules is substantive, not temporary, and issued mandamus for benefits from joining date; denied promotion prayer due to lack of qualifications.

What did the court decide?

Commanded opposite parties to treat initial appointment substantive, ensure all benefits from 27.03.2012, and pay consequential benefits within 3 months.

Virendra Kumar Yadav Vs State of… — Pension and Retirement Benefits | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:4949

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Court No. - 17

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Case :- WRIT - A No. - 20944 of 2020

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Petitioner :- Virendra Kumar Yadav

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Respondent :- State Of U.P.Thru.Prin.Secy.Nagar Vikas Lko. And Anr.

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Counsel for Petitioner :- Ravi Shanker Tewari,Nitin Srivastava,Raj Priya Srivastava,Sheo Pal Singh Counsel for Respondent :- C.S.C.,Ramesh Chandra Pandey

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Hon'ble Manish Mathur,J.

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Heard learned counsel for petitioner and learned State Counsel for opposite party no. 1. Despite revision of list, no one has appeared on behalf of opposite party no. 2.

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Petition has been filed seeking a direction to opposite parties to treat petitioner as a permanent/substantive appointee ever since the date of his joining on 27.03.2012. Further prayer for a direction to opposite parties to accommodate petitioner on a Group-C post as per his qualification ever since the date of his joining in a Group-D post and for payment of difference of salaries on the said post has also been sought.

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It has been submitted that earlier petitioner's father late Indrajeet passed away on 09.11.2011 while in harness whereafter petitioner was granted appointment on compassionate basis on a Group-D post vide order dated 27.3.2012 whereafter he is working on the said post ever since continuously without any complaint, however, the opposite parties have treated petitioner's services to be temporary in nature terminable without any notice.

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It is submitted that it is settled law that appointment made on compassionate basis in terms of the relevant dying-in-harness rules is substantive in nature and therefore petitioner's services cannot be treated to be temporary in nature.

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The opposite party no. 2 has filed its counter affidavit in which it has been specifically stated that since petitioner did not possess the essential qualifications for appointment on a GroupC post, he was offered appointment of Group-D post to which he gave his consent and due to which the appointment letter was issued on 27.03.2012 whereafter, he is continuously performing duties on the said post without any complaints or any objections regarding his appointment on a Group-D post.

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No rejoinder affidavit has been filed against the counter affidavit.

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The aspect that a compassionate appointment made in terms of relevant dying-in-harness rules is substantive in nature has already been dealt with by Division Bench of this Court in the case of Ravi Karan Singh versus State of U.P. and others (1999) 3 U.P.L.B.E.C. 2263 in the following manner:-

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"This petition has come up before us on a reference made by the learned Single Judge by his order dated 19.12.1997. The point involved is very simple, that is, whether an appointment under the Dying in Harness Rules is a permanent appointment or temporary appointment. According to the learned Single Judge, this Court had earlier held that an appointment under Dying in Harness Rules is a permanent appoint vide Budhi Sagar Dubey v. D.O.I.S., (1993) 1 UPLBEC 197; Gulab Yadav v. State of U.P. and others, (1991) 2 UPLBEC 995 and Dhirendra Pratap Singh v. D.I.O.S. & Others. (1991) 1 UPLBEC 427. The learned Single Judge who passed the referring order dated 19.12.1997 disagreed with the above mentioned decisions and hence has referred the matter to a larger Bench.

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In our opinion, 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 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.

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The petition is disposed of accordingly."

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The aforesaid judgment applies his all four corners in the present facts and circumstance of the case where the opposite parties have clearly admitted in their counter affidavit that petitioner was appointed on compassionate basis. Once such an admission has already been made, naturally petitioner's services are treated to be substantive in nature and not temporary.

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In view of aforesaid, a writ in the nature of mandamus is issued commanding the opposite parties to consider petitioner's initial appointment dated 27.03.2012 to be substantive in nature. He shall be eligible for all the benefits as available to a substantively appointed Class-IV employee with the opposite party no. 2 ever since the issuance of appointment dated 27.03.2012. Actual payment of consequential benefits to petitioner shall be ensured within a period of three months from the date a certified copy of this order is produced before the opposite parties.

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Since petitioner admittedly did not have requisite qualifications for appointment on a Group-C post at the time when his appointment was made, the prayer no. 2 is therefore rejected.

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In view of aforesaid, the petition succeeds and is partly allowed to the aforesaid extent. Parties to bear their own cost.

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Order Date :- 17.1.2024 Satish

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Digitally signed by :- SATISH KUMAR BHARATI High Court of Judicature at Allahabad, Lucknow Bench

Virendra Kumar Yadav v. State of U.P.Thru.Prin.Secy.Nagar Vikas Lko. and Anr.

Case brief

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Virendra Kumar Yadav v. State of U.P.Thru.Prin.Secy.Nagar Vikas Lko. and Anr.

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What did the court decide?

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