Back
2012 Supreme(All) 173
[2012(2) ADJ 315 (LB)]
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : ANIL KUMAR, J.
Smt. MAYA DEVI AND ANOTHER ...Petitioners
Versus
STATE OF U.P. AND OTHERS ...Respondents
(Writ Petition No. 4130 (S/S) of 2009, decided on 16th January, 2012)
Amit Bose for the Petitioners; C.S.C. and Dipak Seth for the Respondents.
Headnote:U.P. Retirement Benefit Rules, 1961—Rule 9(2)—Code of Civil Procedure, 1908—Order IX, Rule 4—Dismissal—Dying-in-Harness—Claim for family pension and compassionate appointment—Scope—Deceased while working as Constable Armourer, dismissed from service—Interim order granted against operation of impugned order and petitioner was reinstated in service—While discharging his duties he suffered severe attack and died—Subsequently, petition challenging the said dismissal was dismissed in default—Plea of res judicata negatived—As none of the conditions as mentioned under Rule 2 or 3 of Order IX, CPC exists, as such petitioners cannot take the aid of Order IX, Rule 4, CPC for filing the instant petition for redressal of their grievances—As per Rule 9(2) of 1961 Rules, if an officer is dismissed or removed for his conduct, etc., then in that circumstances, he will not be entitled for any gratuity or family pension—Entitlement to family pension and compassionate appointment ruled out. [Paras 21 to 40]
Hon’ble Anil Kumar, J.—Heard Sri Amit Bose, learned counsel for petitioners and Sri Badrul Hasan, learned Standing Counsel and perused the record.
2. Facts in brief of the present case are that the father of petitioner No. 2 and husband of petitioner No. 1, Late Sri Kishna Pal Singh while working as Constable Armourer in U.P. Police, placed under suspension by order dated 11.5.2003, dismissed from services by order dated 12.8.2003 passed by Senior Superintendent of Police, Aligarh.
3. Aggrieved by the order dated 12.8.2003, Sri Krishna Pal Singh approached this Court at Allahabad by filing Writ Petition No. 38957 of 2003 (Krishna Pal Singh v. State of U.P. and another). On 3.9.2003, an interim order passed, quoted hereinbelow:
“The petitioner is only being tried and apparently has not yet been convicted. Therefore the dismissal order dated-12.8.2003 is wholly misconceived. Such an order could have been passed after departmental enquiry and not otherwise. Standing counsel may therefore file counter-affidavit within one month. List thereafter.
In the meantime the impugned order dated 12.8.2003 will remain stayed.”
4. Accordingly, Sri Krishna Pal Singh started working and discharging his duties on the post in question. Further the said writ petition came up before this Court on 1.8.2006, an order passed, quoted as under :
“List is revised.
No one is appeared for petitioner.
The writ petition is dismissed in default.
Interim order, if any, is vacated”
5. As per submission made by Sri Amit Bose, learned counsel for petitioner that the order dated 1.8.2006 is neither in the knowledge of Sri Krishna Pal Singh nor in the knowledge of department, as such he was allowed to work and discharge his duties in spite of the order dated 1.8.2006, thereafter, on 7.12.2008, suffered paralytic attack, died on 24.12.2008.
6. On the abovesaid factual background, the present writ petition has been filed by the petitioners, namely, Smt. Maya Devi (wife) and Sri Vijendra Pratap Singh (son of the deceased Krishna Pal Singh) with the following main prayer :
(i) issue or pass a writ, direction and/or order in the nature of mandamus directing the respondents hereto to immediately pay to the petitioner No. 1 hereto the entire salary and allowances payable to the Late Krishna Pal Singh for the period he was under suspension from 11.5.2003 to 28.2.2007, release all the increments payable to the Late Krishna Pal Singh during the aforesaid period of his suspension together with the monetary benefits, if any due as a result of sanction of the said increments, the amount of medical reimbursement payable to Late Krishna Pal Singh, the family pension payable to the petitioner No. 1 hereto as a result of death of Late Krishna Pal Singh and the gratuity payable to Late Krishna Pal Singh, and,
(ii) issue or pass a writ, direction and/or order in the nature of mandamus directing the respondents hereto to immediately consider the petitioner No. 2 hereto for compassionate appointment under the provisions of the U.P. Dependents of Government Servants (Dying in Harness) Rules, 1974 in place of his late father, Sri Krishan Pal Singh.”
Submissions as made by Sri Amit Bose, learned counsel for petitioner in nut shell are that once dismissal order dated 12.8.2003 passed by Senior Superintendent of Police, Aligarh has been stayed by this Court at Allahabad by order dated 3.9.2003 passed in Writ Petition No. 38957 of 2003 (Krishna Pal Singh v. State of U.P. and another), the petitioner was allowed to work and discharge his duties and died on 24.12.2008. So, even if the said writ petition was dismissed in default and interim order granted earlier in favour of late Sri Krishna Pal Singh has been vacated by order dated 1.8.2006, the said fact will not come in the way of the present petitioners to file the present writ petition by them as the said fact is neither a legal impediment nor res judicata thereby creating a bar in the way of the present petitioners to approach thi
