Allahabad High Court · 2025 on 14 Jul 2025

Judgment

1. Heard learned counsel for the petitioner, learned Standing Counsel appearing for respondent No.1 and Sri Shubham Tripathi, learned counsel appearing for respondents No.2 to 5.

2. By means of the instant petition, the petitioner seeks to challenge the order dated

24.06.2021 passed by the respondent No.4, a copy of which is annexure-1 to the petition, whereby his services have been dispensed with. He further prays for a direction to the respondents to reinstate the Writ-A No.16058 of 2021 Page Nos.1 of 15 petitioner on the post of Chief Assistant with all consequential benefits.

3. The case set forth by the learned counsel for the petitioner is that the petitioner's father, namely, C.C. Thomas, was working as Office Superintendent Grade-II in the respondent-University who died in harness on 14.12.2002. The petitioner, finding himself eligible for being appointed on compassionate grounds under the Rules governing compassionate appointment, which are said to be the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 19741, which have been adopted by the respondent-University with regard to compassionate appointment, an application was given by the petitioner on 01.01.2003, a copy of which is annexure-2 to the petition. The said application was also accompanied by

an affidavit given by his mother, Smt. Rachel Thomas, indicating her no objection for appointment of the petitioner on compassionate grounds.

4. The petitioner also claims to have submitted a form for the said purpose, a copy of which is annexure-3 to the petition, wherein it was duly disclosed that the wife of the deceased, i.e., the petitioner's mother, is Smt. Rachel Thomas, who is in service and drawing approximately Rs.8,500/- per month. However, dispute has been raised by the 1 (hereinafter referred to as “Rules, 1974”) Writ-A No.16058 of 2021 Page Nos.2 of 15 respondent-University pertaining to the said form having never been submitted by the petitioner.

5. Subsequent to the petitioner having applied for compassionate appointment, an offer letter dated

28.01.2003, a copy of which is annexure-5 to the petition, was issued considering the provisions of the Rules, 1974. By the said appointment offer, the petitioner was offered an appointment to the post of Junior Clerk in the pay scale of Rs.3050–4590 in the respondent-University.

6. Subsequent thereto, the appointment order dated 12.03.2003, a copy of which is annexure-7 to the petition, was issued whereby the petitioner was appointed as Junior Clerk with effect from 01.02.2003. The petitioner has also been confirmed vide order dated 01.02.2004 and has also been promoted as Senior Clerk in the year 2005, and as a Senior Assistant on 01.09.2010. The aforesaid confirmation and promotion orders of the petitioner are not disputed by the respondents.

7. The dispute appears to have arisen when a complaint was received that one Sri Anand Kumar Mishra, who was working as Senior Assistant and had been appointed on compassionate grounds, has secured appointment by concealment of fact and by not Writ-A No.16058 of 2021 Page Nos.3 of 15 indicating that his mother was working on a Class-IV post.

8. This resulted in the respondents opening the files of various persons, including the petitioner. A preliminary inquiry was initiated against the petitioner, in which it was found that the petitioner had allegedly concealed the fact that his mother, namely, Smt. Rachel Thomas, was an employee of the University.

9. Based upon the same, a charge sheet dated

05.10.2020, a copy of which is annexure-22 to the petition, was issued specifically indicating that at the time the petitioner applied for compassionate appointment, on account of concealment of facts, he was appointed on compassionate grounds, and thus it was proposed to hold an inquiry against him.

10. The preliminary inquiry report dated

25.07.2020 was also made part of the charge sheet.

11. After due inquiry, the charges were found proved against the petitioner vide inquiry report dated

03.03.2021. After the petitioner submitted a reply to the show-cause notice issued to him, by means of the impugned order dated 24.06.2021, his services were dispensed with. Writ-A No.16058 of 2021 Page Nos.4 of 15

12. Being aggrieved, the instant petition has been filed.

13. The contention of the learned counsel for the petitioner is that he has not concealed any fact, inasmuch as the application form, by which he applied for compassionate appointment, specifically indicated that he was applying on compassionate grounds on account of the death of his father, who was an employee of the University, and the said application form was duly accompanied by an affidavit of his mother, who gave a no objection certificate to the appointment of the petitioner.

14. The argument is that it is only when the respondent would have required the petitioner to specifically disclose whether the spouse of the deceased-employee, on the basis of whose death the petitioner was seeking appointment on compassionate grounds, was employed anywhere, and he would have concealed the said fact, that the concealment would have been attributable to him.

15. The contention is that once no such disclosure was required to be made by the petitioner, consequently, it cannot be said that there was any concealment on his part so as to have entailed the respondents to hold a preliminary inquiry against him, Writ-A No.16058 of 2021 Page Nos.5 of 15 and on the basis of the same, to have issued a charge sheet to him and thereafter dispensed with his services.

16. Another argument is that as the petitioner has continued to work for about 18 years since his appointment on 01.02.2003 and having been dismissed on 24.06.2021 and has also been confirmed and given two further promotions, consequently, it would be inequitable to throw him out of employment, more particularly since there has been no concealment on his part.

17. In this regard, learned counsel for the petitioner has placed reliance on a judgment of a coordinate Bench of this Court in the case of Anand Kumar Mishra vs. State of U.P. and others2; a judgment of the Hon'ble Supreme Court in the case of Md. Zamil Ahmed vs. State of Bihar and others3; as well as an order passed in the case of Niraj Kumar Singh vs. Anand Kumar Mishra and others4, passed by a Division Bench of this Court dated 25.11.2024, wherein the respondent-University has stated that they do not propose to challenge the judgment of this Court in the case of Anand Kumar Mishra (supra) and are complying with, and in fact have complied with, the said order. 2 in Writ-A No.1414 of 2023, decided on 15.07.2024 3 (2016) 12 SCC 342 4 arising out of Special Appeal Defective No.554 of 2024 Writ-A No.16058 of 2021 Page Nos.6 of 15

18. On the other hand, Sri Shubham Tripathi, learned counsel appearing for the respondent- University has justified the order impugned.

19. His argument is that, in terms of the Rules, 1974, disclosure is required to be made by the person seeking compassionate appointment pertaining to the spouse of the deceased-employee, on the basis of which a dependent seeks appointment, to be in employment or not.

20. The contention is that at no time did the petitioner ever disclose that his mother was an employee of the University, which, if disclosed, would have prevented the compassionate appointment of the petitioner, more particularly when Rule 5 of the Rules, 1974 clearly creates a bar that, in case the spouse of the deceased-employee is in employment, a dependent would not be entitled for compassionate appointment.

21. The further contention of Sri Tripathi is that it was only when a complaint was submitted regarding another person who had secured compassionate appointment, namely Sri Anand Kumar Mishra, that an inquiry was conducted into other compassionate appointments, from which it emerged that the mother of the petitioner was an employee of the University. Had this been disclosed by the petitioner, it would have resulted in he not being appointed. After conducting a Writ-A No.16058 of 2021 Page Nos.7 of 15 preliminary inquiry and issuing the charge sheet, his services were dispensed with. Consequently, once the appointment of the petitioner was obtained by material concealment of the fact, no error was committed by the University in dispensing with his services.

22. The further contention is that similarly placed person has already been dismissed.

23. The further argument of Sri Tripathi is that there is a specific format which is required to be filled in by all persons seeking compassionate appointment, a copy of which is annexure-CA-1 to the counter affidavit. Specific averment to this effect has been made in paragraph 39(v) of the counter affidavit. However, it has also been indicated that the said application in the prescribed format was not found among the documents of the petitioner’s service record in the E-Section of the University

24. Heard the learned counsel for the parties and perused the record.

25. From the arguments as raised by the learned counsel appearing on behalf of the contesting parties and a perusal of records, it emerges that the petitioner's father, namely, Sri C.C. Thomas, who was working in the respondent-University, died in harness on 14.12.2002. The petitioner submitted an application Writ-A No.16058 of 2021 Page Nos.8 of 15 for compassionate appointment and on the basis of the same, the petitioner was appointed on compassionate grounds as a Junior Clerk with effect from 01.02.2003. Thereafter, he was confirmed and also received two promotions as Senior Clerk and as Senior Assistant.

26. By means of the order impugned dated

24.06.2021, the services of the petitioner have been dispensed with on the ground of material concealment of fact at the time of his appointment. A perusal of the charge sheet dated 05.10.2020 indicates that at the time of his appointment on compassionate grounds, the petitioner concealed material facts.

27. The concealment of material fact is said to be that the spouse of the deceased-employee, namely the wife of Sri C.C. Thomas, Smt. Rachel Thomas, the mother of the petitioner was an employee of the University, which fact was not disclosed by the petitioner at the time of applying for compassionate appointment.

28. The application of the petitioner while seeking compassionate appointment has been filed as annexure-2 to the petition, which indicates that he applied for a job on compassionate grounds on the death of his father, namely Sri C.C. Thomas. The said application was also accompanied by an affidavit of his mother, Smt. Rachel Thomas, giving her no objection to Writ-A No.16058 of 2021 Page Nos.9 of 15 the appointment of the petitioner. As per the respondents' prescribed format, a copy of which has been filed as annexure-CA-1 to the counter affidavit, the form was required to be filled in by the petitioner and was indeed filled in by him; however, there was no disclosure of his mother being an employee of the University, which, if disclosed at that point of time by the petitioner, would have entailed in him not being appointed, considering the specific provision of Rule 5 of the Rules, 1974.

29. In paragraph-38(v) of the counter affidavit, the respondents have fairly and categorically stated that the application in the prescribed format under the Dying in Harness Rules, 1974 for securing appointment was not found among the documents of petitioner’s service record in the E-Section of the University. It goes without saying that the University is the custodian of records of its employees and in case the alleged document purported to have been either submitted by the petitioner at the time of his appointment or was required to be submitted by the petitioner at the time of appointment and as per the University was in fact submitted in the prescribed format has not been found in the records of the University they are to thank themselves for it. However, no cognizance can be placed on a missing document. Writ-A No.16058 of 2021 Page Nos.10 of 15

30. The fact of the matter remains that while in the application of the petitioner, which had been submitted, neither was the petitioner required to disclose of his mother being an employee of the University, nor is any such prescribed format even available on record to indicate that the said fact was required to be disclosed by the petitioner at the time of applying for compassionate appointment.

31. The charge sheet, which has been issued to the petitioner, indicates that at the time of his appointment he had concealed vital facts. The concealment of facts can only be established if the prescribed format (which the respondent-University purportedly requires to be filled in by all candidates seeking compassionate appointment) had been given to the petitioner and was available in the records of the respondents to indicate the incorrect filling in of the prescribed format. However, as already indicated above, the said document does not form part of the records of the respondent-University and, as already indicated above, the University being the custodian of the records, in case the said document is not part of the record, consequently, it cannot be said that there has been any concealment of fact on the part of the petitioner.

32. In this regard, this Court may also consider the law laid down by the Hon'ble Supreme Court in the Writ-A No.16058 of 2021 Page Nos.11 of 15 case of Avtar Singh vs. Union of India and others5, wherein, though the Hon'ble Supreme Court was dealing with cases pertaining to concealment of a criminal case at the time a candidate applied for appointment, yet para 38.10 of the said judgment may have some relevance, which, for the sake of convenience, is reproduced herein below :- "(38.10) For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for." (emphasis by Court)

33. From perusal of the observations made by the Hon'ble Supreme Court in the case of Avtar Singh (supra), it clearly emerges that for determining suppression or false information, the form has to be specific and not vague.

34. In the absence of the application form which was required to be submitted by a compassionate appointee, and the only application available on record 5 (2016) 8 SCC 471 Writ-A No.16058 of 2021 Page Nos.12 of 15 being that of the petitioner, which also does not require the petitioner to disclose anywhere whether the spouse of the deceased-employee is working or not, consequently, it cannot be said that any concealment or suppression of fact was committed by the petitioner at the time of applying on compassionate grounds.

35. Even otherwise, with respect to another employee whose services had been dispensed with by the respondent-University on the same ground, i.e., in the case of Anand Kumar Mishra (supra), a coordinate Bench of this Court, vide its judgment/ order dated 15.07.2024, after considering the entire facts and circumstances of the case, has quashed the dismissal order.

36. This Court is not inclined to take a different view as has been taken by the coordinate Bench of this Court in the case of Anand Kumar Mishra (supra), more particularly when learned counsel for the respondents has failed to distinguish the said judgment. Even otherwise in the order dated

25.11.2024 in the case of Niraj Kumar Singh (supra) the respondent-University has stated that it does not propose to challenge the said judgment.

37. Another ground which is very relevant is that the service rendered by the petitioner started from the year 2003 and continued till his service was dispensed Writ-A No.16058 of 2021 Page Nos.13 of 15 with in the year 2021, i.e., 18 years of continuous service. It is not the case of the respondents that any charge sheet, etc., was ever issued to the petitioner regarding his working for a period of almost 18 years. The petitioner also received two promotions on account of his exemplary work, and consequently, it would not be in the fitness of things to disturb the appointment of the petitioner after having rendered 18 years of unblemished exemplary service, more particularly when the respondents have failed to indicate any concealment or suppression of facts at the time of applying for compassionate appointment.

38. The argument of learned counsel for the respondents that Rules, 1974 clearly indicate that if the spouse of the deceased-employee is working, then the dependent would not be eligible for compassionate appointment, is also found to be misconceived as the said rule would be applicable both ways. In case the respondents would have required the petitioner to disclose the said fact and the petitioner had not disclosed the same, then the respondents were within their rights of terminating the services of the petitioner, but in the absence of any specific query being made to the petitioner in this regard or the form itself requiring the petitioner to disclose as to whether the spouse of the deceased is working or not, consequently, the said ground does not prevail on this Court to hold the same against the petitioner. Thus the said ground is rejected. Writ-A No.16058 of 2021 Page Nos.14 of 15

39. Keeping in view the aforesaid discussion, the writ petition is allowed. The order impugned dated

24.06.2021, a copy of which is annexure-1 to the petition, is quashed.

40. Consequences to follow. [Abdul Moin, J.] Order Date :- 14.07.2025 cks/- Writ-A No.16058 of 2021 Page Nos.15 of 15