Asi (M) Shafeeq Ahmad Pno. 912650720 v. State Of U.P. Thru. Addl. Chief Secy. /Prin. Secy. Home U.P. Lko. And 5

4. It has been submitted by learned counsel for petitioners that they were appointed initially on compassionate basis under the U.P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974 (hereinafter referred to as the 'Rules 1974') but their initial orders of appointment indicated that they were appointed on a fixed consolidated 8 WRIA No. 11744 of 2024 salary along with only other admissible emoluments. It has been submitted that subsequently by means of various orders, petitioners were admitted to regular pay scales. It has also been submitted that most of petitioners were appointed on compassionate basis on the post of Constable (M) and were subsequently promoted on the post of Assistant Sub Inspector (M) whereafter only, regular pay scale was made available to them.

5. It has further been submitted that by means of impugned Government orders dated 28.4.2017 and 2.12.2019 as well as the consequential impugned office order dated 7.6.2022, benefit of Assured Career Progression Scheme to the petitioners have been directed to be made available only from the date when petitioners were admitted to regular pay scale and not from the date of their initial appointment on compassionate basis on a consolidated salary.

6. It has also been submitted that aforesaid Government orders are contrary to the very nature of appointment of petitioners, since it is settled law that compassionate appointments in terms of the 'Rules 1974' are substantive in nature irrespective of the consolidated nature of emoluments being paid to them.

7. Learned counsels for petitioners has placed reliance upon a judgement of Division Bench of this Court in the case of Ravi Karan Singh Vs. State of U.P. and others reported in 1999 (17) LCD 641 and a judgement of the co-ordinate Bench of this Court in the case of Praveen Kumar Vs. State of U.P. and others (2023) 10 ADJ 17.

8. Mr. Sandeep Sharma, learned State counsel, on the basis of counter affidavit, submits that provisions of grant of Assured Career Progression Scheme have been accorded in terms of Government order dated

5.11.2014, which clearly prescribes grant of such benefits in a particular pay scale and upon completion of continuous satisfactory service for a stipulated service period. It has been submitted that since petitioners were appointed on a consolidated salary, provisions of Government order dated

5.11.2014 are thus, applicable only from the date when the petitioners were admitted to regular pay scale. It has further been submitted that the 9 WRIA No. 11744 of 2024 present dispute, therefore, pertains only to grant of benefits of ACP since for the purpose of other benefits, services of petitioners from the initial date of appointment have already been taken into account. It has also been submitted that it is on account the fact although petitioners were appointed on a consolidated salary but were made admissible to the regular pay scale incorrectly, that recovery orders have been directed.

9. Upon consideration of submissions advanced by learned counsel for parties and perusal of the material available on record, the question that arises for consideration in this petition is whether petitioners, who have been appointed on a compassionate basis would be entitled to the benefits of ACP from the date of entry into service on a consolidated salary or from the date when they were made eligible for the regular pay scale.

10. With regard to the nature of appointment of petitioners, the aforesaid aspect has already been adjudicated upon by the Hon'ble Supreme Court in the case of U.P. State Road Transport Corporation Vs. Brijesh Kumar AIR 2025 SC (CIVIL) 62 as well as by the Division Bench of this Court in the case of Ravi Karan Singh (supra) in which it has been clearly held that the nature of appointment on compassionate basis is substantive from the date of initial appointment itself. The relevant portion of judgement is as follows: "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. In our opinion, an appointment under the Dying in Harness Rules has to be treated as a permanent appointment otherwise if such appointment is 10 WRIA No. 11744 of 2024 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. The petition is disposed of accordingly."

11. From a perusal of the aforesaid judgment and the facts and circumstances of the case, it is admitted that the petitioners were initially appointed on a compassionate basis under the 'Rules 1974' but on a consolidated salary. In terms of pronouncement of law as discussed hereinabove, it is evident that nature of petitioners' appointment is substantive, they were, therefore, required to be placed in regular pay scale for the post to which they were appointed from the initial date of appointment itself, rather than being engaged on a consolidated salary.

12. It is, therefore, quite evident that providing appointments to petitioners on a consolidated salary would be against the very nature of their appointments, which were substantive. In such circumstances, it is held that appointment of petitioners only on consolidated salary and not on the regular pay scale was evidently erroneous on the part of opposite parties.

13. Once it is evident, as held hereinabove, that initial appointment itself was substantive in nature and petitioners were thus entitled to a regular pay scale instead of a consolidated salary, the aspect of applicability of ACP from a subsequent date becomes irrelevant. It is, thus, held that since petitioners were entitled to a regular pay scale from the date of their initial appointment itself, they would be covered by the government order dated

5.11.2014 from the date of their initial appointment itself, and not from the date when they were subsequently granted a regular pay scale. 11 WRIA No. 11744 of 2024

14. It is also clear from the previous Government order dated 21.11.2013 that earlier the State Government itself had granted such benefits to petitioners, who were appointed on compassionate basis but said facility has been withdrawn by means of impugned Government orders as well as office order apparently on a misconception with regard to nature of appointment of petitioners.

15. Considering the discussions made hereinabove, impugned Government orders dated 28.4.2017 and 2.12.2019 as well as consequential impugned office order dated 7.6.2022 are hereby quashed by issuance of a writ in the nature of certiorari so far as they were denying grant of ACP to petitioners from their initial date of appointment.

16. Resultantly, various recovery orders issued against petitioners for recovery/adjustment of pay scales made admissible to them from the initial date of appointment also stands quashed by issuance of writ in the nature of certiorari. Further, a writ in the nature of mandamus is issued, commanding the opposite parties to refund the deductions made in pursuance of impugned recovery notices/orders expeditiously within a period of eight weeks from the date of production of a certified copy of this order is served upon the concerned authority.

17. Consequently, the writ petitions succeed and are allowed. Parties to bear their own costs. September 1, 2025 AKK (Manish Mathur,J.) AMIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

4. It has been submitted by learned counsel for petitioners that they were appointed initially on compassionate basis under the U.P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974 (hereinafter referred to as the 'Rules 1974') but their initial orders of appointment indicated that they were appointed on a fixed consolidated 8 WRIA No. 11744 of 2024 salary along with only other admissible emoluments. It has been submitted that subsequently by means of various orders, petitioners were admitted to regular pay scales. It has also been submitted that most of petitioners were appointed on compassionate basis on the post of Constable (M) and were subsequently promoted on the post of Assistant Sub Inspector (M) whereafter only, regular pay scale was made available to them.

5. It has further been submitted that by means of impugned Government orders dated 28.4.2017 and 2.12.2019 as well as the consequential impugned office order dated 7.6.2022, benefit of Assured Career Progression Scheme to the petitioners have been directed to be made available only from the date when petitioners were admitted to regular pay scale and not from the date of their initial appointment on compassionate basis on a consolidated salary.

6. It has also been submitted that aforesaid Government orders are contrary to the very nature of appointment of petitioners, since it is settled law that compassionate appointments in terms of the 'Rules 1974' are substantive in nature irrespective of the consolidated nature of emoluments being paid to them.

7. Learned counsels for petitioners has placed reliance upon a judgement of Division Bench of this Court in the case of Ravi Karan Singh Vs. State of U.P. and others reported in 1999 (17) LCD 641 and a judgement of the co-ordinate Bench of this Court in the case of Praveen Kumar Vs. State of U.P. and others (2023) 10 ADJ 17.

8. Mr. Sandeep Sharma, learned State counsel, on the basis of counter affidavit, submits that provisions of grant of Assured Career Progression Scheme have been accorded in terms of Government order dated

5.11.2014, which clearly prescribes grant of such benefits in a particular pay scale and upon completion of continuous satisfactory service for a stipulated service period. It has been submitted that since petitioners were appointed on a consolidated salary, provisions of Government order dated

5.11.2014 are thus, applicable only from the date when the petitioners were admitted to regular pay scale. It has further been submitted that the 9 WRIA No. 11744 of 2024 present dispute, therefore, pertains only to grant of benefits of ACP since for the purpose of other benefits, services of petitioners from the initial date of appointment have already been taken into account. It has also been submitted that it is on account the fact although petitioners were appointed on a consolidated salary but were made admissible to the regular pay scale incorrectly, that recovery orders have been directed.

9. Upon consideration of submissions advanced by learned counsel for parties and perusal of the material available on record, the question that arises for consideration in this petition is whether petitioners, who have been appointed on a compassionate basis would be entitled to the benefits of ACP from the date of entry into service on a consolidated salary or from the date when they were made eligible for the regular pay scale.

10. With regard to the nature of appointment of petitioners, the aforesaid aspect has already been adjudicated upon by the Hon'ble Supreme Court in the case of U.P. State Road Transport Corporation Vs. Brijesh Kumar AIR 2025 SC (CIVIL) 62 as well as by the Division Bench of this Court in the case of Ravi Karan Singh (supra) in which it has been clearly held that the nature of appointment on compassionate basis is substantive from the date of initial appointment itself. The relevant portion of judgement is as follows: "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. In our opinion, an appointment under the Dying in Harness Rules has to be treated as a permanent appointment otherwise if such appointment is 10 WRIA No. 11744 of 2024 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. The petition is disposed of accordingly."

11. From a perusal of the aforesaid judgment and the facts and circumstances of the case, it is admitted that the petitioners were initially appointed on a compassionate basis under the 'Rules 1974' but on a consolidated salary. In terms of pronouncement of law as discussed hereinabove, it is evident that nature of petitioners' appointment is substantive, they were, therefore, required to be placed in regular pay scale for the post to which they were appointed from the initial date of appointment itself, rather than being engaged on a consolidated salary.

12. It is, therefore, quite evident that providing appointments to petitioners on a consolidated salary would be against the very nature of their appointments, which were substantive. In such circumstances, it is held that appointment of petitioners only on consolidated salary and not on the regular pay scale was evidently erroneous on the part of opposite parties.

13. Once it is evident, as held hereinabove, that initial appointment itself was substantive in nature and petitioners were thus entitled to a regular pay scale instead of a consolidated salary, the aspect of applicability of ACP from a subsequent date becomes irrelevant. It is, thus, held that since petitioners were entitled to a regular pay scale from the date of their initial appointment itself, they would be covered by the government order dated

5.11.2014 from the date of their initial appointment itself, and not from the date when they were subsequently granted a regular pay scale. 11 WRIA No. 11744 of 2024

14. It is also clear from the previous Government order dated 21.11.2013 that earlier the State Government itself had granted such benefits to petitioners, who were appointed on compassionate basis but said facility has been withdrawn by means of impugned Government orders as well as office order apparently on a misconception with regard to nature of appointment of petitioners.

15. Considering the discussions made hereinabove, impugned Government orders dated 28.4.2017 and 2.12.2019 as well as consequential impugned office order dated 7.6.2022 are hereby quashed by issuance of a writ in the nature of certiorari so far as they were denying grant of ACP to petitioners from their initial date of appointment.

16. Resultantly, various recovery orders issued against petitioners for recovery/adjustment of pay scales made admissible to them from the initial date of appointment also stands quashed by issuance of writ in the nature of certiorari. Further, a writ in the nature of mandamus is issued, commanding the opposite parties to refund the deductions made in pursuance of impugned recovery notices/orders expeditiously within a period of eight weeks from the date of production of a certified copy of this order is served upon the concerned authority.

17. Consequently, the writ petitions succeed and are allowed. Parties to bear their own costs. September 1, 2025 AKK (Manish Mathur,J.) AMIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench