Allahabad High Court
Smt. Azra Tabassum vs State Of U.P. Thru. Prin. Secy. Social ... on 9 October, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:62477
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT - A No. - 18136 of 2020
Smt. Azra Tabassum
.....Petitioner(s)
Versus
State Of U.P. Thru. Prin. Secy. Social Welfare Lko. And Anr.
.....Respondent(s)
Counsel for Petitioner(s)
:
Avinash Tiwari
Counsel for Respondent(s)
:
C.S.C.
Court No. - 22
HON'BLE AMITABH KUMAR RAI, J.
1. Heard learned counsel for the petitioner and learned State Counsel.
2. During the pendency of the present writ petition, the petitioner died on 22.04.2021, and her legal heirs have already been substituted vide order dated 30.09.2021 passed by this Court.
3. This writ petition has been filed seeking relief for quashing of the order dated 14.07.2020 passed by respondent no.2, Director, Social Welfare, U.P., Lucknow, whereby the claim of the petitioner for payment of arrears of salary for the period from 26.04.2000 to 30.06.2016 has been denied on the ground of "no work, no pay". The claim of the petitioner for regularization on the post of Data Entry Operator has also been rejected on the ground that the post on which the petitioner had been working was already filled by one Shri R. K. Srivastava, who had been regularized on the said post, and also on the ground that earlier order dated 30.06.2016 passed by the then Director of the department re-instating the petitioner was erroneous.
4. It is the case of the petitioner that she was appointed in exigency of service on the post of Data Entry Operator on 28.02.1990. The petitioner was discharged from service vide order dated 26.04.2000, issued under the provisions of Uttar Pradesh Temporary Government Servants (Termination of Services) Rules, 1975, as she had been absent from service for a long time. Thereafter, the petitioner filed Writ Petition No. 3104 (SS) of 2001 before this Court against the order dated 26.04.2000 terminating her services, which was dismissed by order dated 29.01.2007. Aggrieved thereby, the petitioner filed Special Appeal No. 225 of 2007 before this Court.
5. In Special Appeal No. 225 of 2007, this Court passed an order dated 30.05.2016, the relevant portion of which is quoted hereinbelow: "In pursuance of the order passed by this Court, the Director, Social Welfare, Lucknow is present in person. He states that he will take a decision in the matter, in accordance with law, by the next date, considering the entire facts on record and also the permissibility of leave to the appellant."
6. In pursuance of the aforesaid order dated 30.05.2016, the then Director, Social Welfare, Lucknow, passed an order dated 30.06.2016 reinstating the petitioner in service on temporary basis, subject to the final outcome of Special Appeal No. 225 of 2007. The said appeal was finally disposed of vide order dated 16.12.2016, in terms of the order dated 30.06.2016 passed by the Director, Social Welfare, Lucknow.
7. Subsequently, petitioner filed Writ Petition No. 9372 (SS) of 2017 before this Court, challenging the order dated 30.06.2016 to the extent of denial of payment of salary for the period from 26.04.2000 to 30.06.2016. The writ petition was disposed of vide order dated 23.01.2019 by quashing the rider contained in the order dated 30.06.2016 regarding non-payment of salary to the petitioner for the said period. Further, the writ court directed the authorities to take a decision regarding payment of salary to the petitioner for the period from 26.04.2000 to 30.06.2016 and to consider her case for regularization on the post of Data Entry Operator.
8. In compliance of the directions contained in the judgment and order dated 23.01.2019 passed in Writ Petition No. 9372 (SS) of 2017, the case of the petitioner was considered by the Director, Social Welfare, Lucknow, and an order dated 14.07.2020 was passed rejecting the petitioner's claim for payment of arrears of salary for the period from 26.04.2000 to 30.06.2016, as well as rejecting her case for regularization on the ground that the order dated 30.06.2016, reinstating the petitioner's services, was an erroneous order that could not have been passed by the Director, Social Welfare, Lucknow.
9. It has been further stated in the order dated 14.07.2020 that one Shri R.K. Srivastava had already been appointed on the post on which the petitioner was working in the year 2000 and has been regularized and since he had already been regularized, the petitioner's case could not be considered for regularization. It was also stated that the petitioner had already attained the age of superannuation on 31.05.2019 and had retired from service and now he cannot be regularized.
10. Be that as it may, this Court is of the view that once the judgment and order dated 23.01.2019 passed in Writ Petition No. 9372 (SS) of 2017 had attained finality with regard to the payment of salary to the petitioner for the period from 26.04.2000 to 30.06.2016 with a direction for consideration of her regularization on the said post, it was not open for the respondents to deny payment of salary to the petitioner for the said period on the ground of the earlier order dated 30.06.2016 passed by the Director, Social Welfare, Lucknow, reinstating her services was erroneous.
11. The petitioner retired on 31.05.2019, and prior to her retirement, the departmental selection committee for regularization had already convened its meeting on 29.04.2019 to consider her case for regularization. As such, the stand of the respondents in the counter affidavit that the petitioner, having retired, could not be considered for regularization, is misconceived. The said exercise ought to have been completed prior to the petitioner's retirement and petitioner cannot be made to suffer for the fault of the respondents. The petitioner's grievance, as stated above, appears justified in view of the delay on the part of the authorities in considering her case for regularization.
12. The stand of the respondents that after the death of the petitioner, she cannot be considered for regularization is misconceived. The death of the petitioner does not absolve the State Government of its obligation to consider the claim for regularization of the petitioner, even after her death, for the reason that when the steps were taken to regularize the petitioner, she was very much alive. The Selection Committee had convened its meeting on 29.04.2019 to consider the case of the petitioner for regularization. In this regard, the observation of this Court in the case of State of U.P. and Others vs. Kuldeep Thakur, reported in 2017 (350 LCD 696), is relevant. In the said case, the writ petition for compassionate appointment filed by the petitioner therein was rejected on the ground that his father had not been regularized in service. This Court held that when the case of the father of the respondent-petitioner was forwarded for regularization, he was very much alive. Hence, the fortuitous circumstance of the death of the father of the respondent-petitioner did not absolve the State Government of its obligation to consider his claim for regularization.
13. The relevant paragraph nos. 11 and 12 of the judgment and order dated 01.03.2017 passed in the case of Kuldeep Thakur (supra) are reproduced hereinbelow : "Applying the said analogy, the claim of the father of the respondent petitioner had already been forwarded and he was very much alive when the Government order dated 13.08.2015 was issued. In such a situation the State Government or its concerned department ought to have considered the claim of the respondent petitioner for regularization and then could have proceeded to determine as to whether the respondent petitioner was entitled to any benefit or not. In our opinion, the fortuitous circumstance of the death of the father of the respondent petitioner does not absolve the State Government of its obligation to consider the claim of regularization of the father of the respondent petitioner. There can be a case where the consideration has been made and the regularization accepted but before the order reaches a man dies or his death takes place in the near vicinity or simultaneously with regularization. In this situation, the claim of regularization of the deceased employee does not remain an option to be ignored by the State Government. The State Government or its authorities are under an obligation to consider such a claim and to award any consequential benefits if the process has been set into motion as has happened in the present case. Once the father of the respondent petitioner is found entitled to be regularized as on the date of the Government order dated 13.08.2015, on which date he was admittedly alive, then in that event the claim of the respondent petitioner can also be considered. The consideration of the right of being regularized by operation of law while in force had already accrued in favour of the father of the respondent petitioner, and his death in between further gave rise to the expected consequential claim of compassionate appointment of the petitioner, provided his father's services were declared regular. The consideration of such right, whether had accrued, does not get eclipsed nor could it be abandoned. If the consideration results in the services of the petitioner's father becoming regular, then the Full Bench judgment in the case of Pawan Kumar Yadav (supra) would not be an impediment for the respondent petitioner to be considered for compassionate appointment. The appellant State and it's authorities therefore cannot escape this exercise and defeat the right of consideration by their inaction or the absence of timely and prompt action. Such exercise of consideration will not evaporate because of untimely death which is a fortuitous circumstance so as to result in any advantage to the State."
14. In the instant case also, Writ Petition No. 9372 (SS) of 2017 filed by the petitioner (now deceased) was allowed on 23.01.2019, and a direction was issued to consider the case of the petitioner for regularization within four weeks. At that point in time, the petitioner was still in service, as she retired on 31.05.2019. The meeting of the Selection Committee for regularization was convened on 29.04.2019; however, instead of regularizing the petitioner, her case was deferred. The petitioner, therefore, cannot be denied regularization due to the inaction on the part of the respondents.
15. Accordingly, the writ petition is allowed. A writ of certiorari is issued quashing the order dated 14.07.2020. A writ of mandamus is issued to respondent nos.1 and 2 to ensure payment of salary to the petitioner on the post of Data Entry Operator for the period from 26.04.2000 to 30.06.2016, and to reconsider the petitioner's case for regularization afresh within a period of three months, ignoring the fact that she has retired, as her claim for regularization had already crystallized when the judgment and order dated 23.01.2019 in Writ Petition No. 9372 (SS) of 2017 was passed.
16. No order as to costs.
(Amitabh Kumar Rai,J.)
October 9, 2025
Mahesh
