Allahabad High Court
Shiva Raj Singh vs D.M. Saharanpur And Another on 1 September, 2025
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:153714
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - A No. - 42468 of 1998
Shiva Raj Singh
.....Petitioner(s)
Versus
D.M. Saharanpur And Another
.....Respondent(s)
Counsel for Petitioner(s)
: Sharad Kumar Pandey
Counsel for Respondent(s)
: Jai Bahadur Singh
Connected with Writ A No. 17912/2015
Court No. - 5
HON'BLE SAURABH SHYAM SHAMSHERY, J.
Delay Condonation Application No. 79495/2015 in Writ No. 42468/1998
1. Heard.
2. Cause shown is sufficient.
3. Delay in filing substitution application is condoned.
4. Application is allowed.
Restoration Application No. 79499/2015 in Writ No. 42468/1998
1. Heard.
2. Allowed. Order dated 09.04.2024 is recalled and writ petition is restored to its original number.
Order on Writ Nos. 42468/1998 and 17912/2015
1. In present both writ petitions, original petitioner as well as his son and respondents have created such circumstances which led to multiple litigation.
2. It is not disputed that original petitioner Shiv Raj Singh was appointed as Driver by an order dated 29.09.1997 against a vacant post due to retirement of a driver.
3. It appears that subsequently service of original petitioner Shiv Raj Singh were terminated by an order dated 08.11.1998 (not on record) which was referred in an order dated 19.11.1998 that appointment of original petitioner was contrary to procedure and was not appointed not being qualified in terms of educational qualifications. Both orders were challenged by way of filing present writ petition in the year 1998 and this Court vide an interim order dated 23.12.1998 has stayed operation of both impugned orders.
4. It appears that original petitioner took benefit of interim order and remained continue in service till he died on 08.09.2007.
5. It is further on record that since original petitioner died in harness, therefore, his son i.e. original petitioner's legal heir and petitioner in connected writ petition of 2015 Sanjeev Kumar was granted appointment on compassionate basis by an order dated 14.05.2008 without any reference that it will be subject to outcome of present writ petition.
6. An impleadment application was filed in the year 2011 by Nagar Nigam, Saharanpur through its Nagar Ayukt to implead them as respondent-3 with a prayer that due to subsequent developments, writ petition of 1998 be dismissed as abated or infructuous. For reference, relevant paragraph 6, 7, 8, 9 and 10 of impleadment application are quoted below :-
?6. That on account of death of petitioner Shivraj Singh who was working under the interim order of this Hon'ble Court, the appointment of his son viz. Sri Sanjiv Kumar giving benefit of Dying in Harness Rules, 1974 has been made.
7. That after death of petitioner Shivraj Singh, his son Sanjiv Kumar been has been given appointment on 14.5.2008 on the post of Safai Nayak by Nagar Palika Parishad, Saharanpur. Now it is Nagar Nigam, Saharanpur. Nagar Palika Parishad has become Nagar Nigam w.e.f. 1.10.2009. True copy of death certificate is being filed herewith and marked as Annexure No.1 to this affidavit. True copy of appointment order of son of petitioner is being filed herewith and marked as Annexure No.2 to this affidavit.
8. That since the petitioner has died on 8.9.2007 present writ petition has become infructuous. Benefit under Dying in Harness Rules has been also given to his son who is working as Safai Nayak in Nagar Nigam Saharanpur.
9. That since Nagar Nigam, Saharanpur has not impleaded as party and Nagar Nigam be impleaded as respondent no.3 in the present writ petition.
10. That in view of the subsequent development writ petition may be dismissed as abated or infructuous.?
7. Subsequently, writ petition of 1998 was dismissed for want of prosecution on a ground that none appears to press the writ petition and Coordinate Bench finds that there was no case to justify interference.
8. Aforesaid order came into knowledge of respondents and by an order dated 23.03.2015 cancelled the appointment of legal heir of original petitioner (petitioner in connected writ petition) on a ground that appointment of his father being protected by interim order became void ab initio since writ petition was dismissed for want of prosecution and interim order was vacated without taking note of above referred impleadment application.
9. The order dated 23.03.2015 is impugned in connected Writ Petition No. 17912 of 2015.
10. Sri Sharad Kumar Pandey, learned counsel for petitioner in both writ petitions submits that original petitioner has enjoyed interim order for seven years and now son was appointed on compassionate basis, therefore, in the interest of justice, his appointment be protected.
11. Sri Jai Bahadur Singh, learned counsel for respondent-Nigam has not able to dispute about application for impleadment and prayer of dismissal of writ petition made therein, however, he submits that in the light of judgment passed in Pawan Kumar Yadav vs State of U.P. and others, Civil Misc. Writ Petition No. 15505 of 2005 decided on 22.09.2010 that if an appointment is not against a substantive post, no compassionate appointment may be granted if such employee dies in harness though he is not able to show that if the aforesaid circumstance was correct, why not it was considered at the time when compassionate appointment was given.
12. I have considered above submissions and perused the records.
13. Order impugned dated 08.11.1998 in writ petition of 1998 is not on record though from pleadings, it appears that order was passed without giving any opportunity to original petitioner and it was more required when allegations were of submitting forged documents.
14. Except vague allegations and vague inquiry report, there is no material to substantiate findings returned by respondents so far as appointment of original petitioner is concerned.
15. Otherwise also, much water has flown and his son has worked under compassionate appointment for 7 years.
16. Court also takes note that from appointment letter of original petitioner that appointment appears to be against the vacant post, therefore, it was a substantive appointment.
17. In aforesaid circumstances, the order impugned dated 08.11.1998 and 19.11.1998 are set aside and its legal consequence shall follow that appointment of petitioner?s father become legal, therefore, legal impediment mentioned in the impugned order dated 23.03.2015 whereby compassionate appointment of original petitioner was cancelled now does not exist.
18. Accordingly, impugned order dated 23.03.2015 in writ petition of 2015 is also set aside with a direction that continuity of service will be given.
19. However, it is observed that period for salary from 23.03.2015 till the date of order of this Court will be considered as ?no work no pay?.
20. Both writ petitions are disposed of with above observations.
(Saurabh Shyam Shamshery,J.)
September 1, 2025
N. Sinha
