Allahabad High Court
Abhishek Kumar vs State Of Up And 5 Others on 26 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:89400
Court No. - 49 Reserved
Case :- WRIT - A No. - 19403 of 2024
Petitioner :- Abhishek Kumar
Respondent :- State of U.P. and others
Counsel for Petitioner :- Siddharth Khare
Counsel for Respondent :- Brijesh Kumar Mishra,C.S.C.
Hon'ble J.J. Munir,J.
1. Heard Mr. Aditendra Singh, learned Counsel for the petitioner, Mr. Brijesh Kumar Mishra, learned Counsel appearing on behalf of respondent Nos. 4, 5 and 6 and Mr. S.C. Upadhyay, learned Standing Counsel on behalf of respondent Nos.1, 2 and 3.
2. This writ petition is directed against the order of the Nagar Swasthya Adhikari, Nagar Nigam, Saharanpur dated 04.10.2024, notifying the decision of the Nagar Ayukt, Nagar Nigam, Saharanpur, rejecting the petitioner's claim for compassionate appointment. Also under challenge is the order of the Mukhya Nagar Adhikari aforesaid dated 24.09.2024 declining the petitioner's claim as aforesaid, after summoning the same from the respondents. The order dated 24.09.2024 has been annexed to the return, filed on behalf of the Nagar Nigam, as Annexure No. CA-1.
3. The late Ajay Kumar, the petitioner's father, was a permanent Safai Karamchari in the employ of the Nagar Nigam, Saharanpur (for short, 'the Nigam'). He died in harness on 09.07.2024. The petitioner applied for compassionate appointment against a suitable post in the establishment of the Nigam, commensurate to his qualifications. The petitioner has earned an Intermediate certificate, a fact not in dispute. He was informed vide order dated 04.10.2024 passed by the Nagar Swasthya Adhikari of the Nigam that his claim for compassionate appointment had been rejected by the Nagar Ayukt vide order dated 24.09.2024.
4. The order of the Nagar Swasthya Adhikari shows to its face that the claim of the petitioner was rejected on the ground that the petitioner's father, Ajay Kumar, who had died in harness, was appointed on compassionate grounds by an order of the Executive Officer dated 20.01.1987 in place of his father, Mitthan son of Kanhaiya, a Safai Karamchari with the Nigam, who had resigned his services. The petitioner's father was appointed in the vacancy caused by the resignation of his father, Mitthan. Apparently, the reasoning is that since the petitioner's father had been wrongfully appointed, the petitioner had no valid candidature to be considered for compassionate appointment. Now, the order dated 04.10.2024 passed by the Nagar Swasthya Adhikari is not the substantive order, rejecting the petitioner's claim. It communicates the decision taken by the Nagar Ayukt on 24.09.2024. The petitioner has also prayed to quash the order of the Nagar Ayukt, but the same was not available to the petitioner, when he instituted the petition. The petitioner, therefore, prayed for a certiorari to quash the order dated 24.09.2024 passed by the Nagar Ayukt, after summoning the same.
5. Upon a notice of motion being issued on 06.12.2024, a counter affidavit was filed on behalf of the Nagar Swasthya Adhikari, the only return on behalf of the Nigam. A copy of the other order impugned, passed by the Nagar Ayukt on 24.09.2024, has been enclosed as Annexure No. CA-1. A perusal of the said order shows that the order of the Nagar Ayukt is based on a note put up by the office and forwarded to him, reflecting the same reasons as carried in the order of the Nagar Swasthya Adhikari, which the Nagar Ayukt has approved by writing on the office note-sheet "अवलोकन किया गया। यथा प्रस्तावित।"
6. Indeed, the Nagar Ayukt has approved the note put up by the office and proposed by the Nagar Swasthya Adhikari, to decline the petitioner's claim on grounds already indicated. But, in doing so, he has not cared to write one word of affirmative approval. Be that as it may, his intention being very clear, we take the order dated 24.09.2024 for all that it means.
7. In substance, the petitioner's claim for compassionate appointment stands declined because, according to the respondents, the petitioner's father, on account of whose death he has applied for compassionate appointment, was himself not validly appointed. Apparently, the petitioner's father was employed by the Nigam by an order dated 20.01.1987 as a Safai Karamchari, after his father put in his resignation. The petitioner's father continued to serve the Nigam from 20.01.1987 to 07.09.2024, the day he died in harness - a total period of more than 37 years, without any objection or demur from the respondents. The respondents now say that the deceased employee should not have been appointed way back in the year 1987 because his father had resigned his job and the fact did not entitle the resigning employee's son to be appointed on compassionate grounds, which was done by the then Executive Officer.
8. The question involved in this petition is the same as the one in Deepak Kumar v. State of U.P. and others, 2024 (2) ADJ 219. The question, that fell for consideration in Deepak Kumar (supra), reads:
"Whether compassionate appointment can be denied to a candidate on ground that the deceased-employee, whose demise gives him a right under the Uttar Pradesh Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974/Dying-in-Harness Scheme, was not lawfully appointed?"
9. In Deepak Kumar, I answered the question thus:
"13. In the opinion of this Court, the crux of the matter is whether the appointment of the petitioner's father can be adjudged void posthumously and retrospectively. In our considered opinion, that cannot be done. It is well-settled that that an employee, after being appointed to a post, eligible or ineligible, cannot be removed, except by the procedure established by law. Generally, for a permanent employee, even if there is a case about ineligibility, some kind of proceedings, normally disciplinary proceedings, have to be taken to determine his employment. Once an employee, who has occupied a post governed by Statute is dead, no proceedings of any kind can be taken, terminating his status after his demise. Even if it be considered that the petitioner's father's appointment was made contrary to the Statute, holding it so after his demise, would be passing an order against a dead man adverse to his interest, particularly one relating to his status. If disciplinary proceedings were initiated against the petitioner's father on the charge that he secured an appointment, that was invalid, deliberately, these would abate upon his demise, as held by the Supreme Court in A.K.S. Rathore (Dead) through LRs v. Union of India and another, Civil Appeal No. 7028 of 2022, decided on 28.9.2022. Since no disciplinary proceedings or other proceedings were initiated during the petitioner's father's lifetime, no different consequence can attach after his death vis-à-vis his status and the rights of his dependents. The petitioner's father held a permanent post in the establishment of the Nagar Nigam, Saharanpur until his demise. Therefore, the respondents are obliged to consider the petitioner's candidature for compassionate appointment as an eligible member of the deceased-employee's family, in accordance with the Rules of 1974."
10. An appeal was carried from the judgment and order in Deepak Kumar to the Division Bench, being Special Appeal Defective No. 456 of 2024, which was disposed of by their Lordships vide order dated 05.07.2024, without interfering with the judgment and order dated 21.12.2023 and in terms of an earlier order of the Division Bench in Nagar Ayukt, Nagar Nigam through its Chief Executive Officer and others v. Karan Addiwal and others, 2023:AHC:107579-DB. The Nagar Ayukt and the Nagar Swasthya Adhikari in Karan Addiwal (supra), who incidentally represent the same Nagar Nigam as the one here and were also the respondents in Deepak Kumar, questioned the judgment of the Division Bench dated 05.07.2024 in the appeal arising out of Deepak Kumar before the Supreme Court by means of Special Leave Petition (Civil) Diary No. 46501 of 2024. The Special Leave Petition aforesaid was summarily dismissed by their Lordships vide order dated 02.01.2025. The point here is, therefore, concluded against the respondents in terms of my judgment and order passed in Deepak Kumar.
11. This petition, accordingly, succeeds and is allowed. The impugned order dated 04.10.2024 passed by the Nagar Swasthya Adhikari (Annexure No.1 to the writ petition) and the order of the Nagar Ayukt dated 24.09.2024 (Annexure No. CA-1 to the counter affidavit) are hereby quashed. A mandamus is issued to the Nagar Ayukt and the Nagar Swasthya Adhikari, respondent Nos.5 and 6, respectively, to ensure amongst themselves consideration of the petitioner's candidature for appointment on compassionate basis in accordance with law within a month of the date of receipt of a copy of this judgment.
12. Let a copy of this order be communicated to the Nagar Ayukt, Nagar Nigam, Saharanpur and the Nagar Swasthya Adhikari, Nagar Nigam, Saharanpur by the Registrar (Compliance).
Order Date :- 26.5.2025
Anoop
(J.J. Munir)
Judge
