Q. What are the equivalent citations for Anand Kumar vs State of U.P. and others ?

The equivalence citation are2025/AHC/12214 ; 2025 (2) ADJ 724 ; 2025 (2) ALJ 689 ; 2025 2 AWC 1559 All ; (2025) ILR 1 All 747 ;

Anand Kumar Vs. State Of U.P. And Others On 24 January, 2025

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Anand Kumar v. State Of U.p. And Others

(High Court Of Judicature At Allahabad)

WRIT - A No. - 4769 of 2022 | 24-01-2025

1. The Covid-19 pandemic, that ravaged humanity during the years 2020-21 across the world, is unprecedented for its destruction, death, loss of livelihood, business and many such things in the history of mankind. While it brought on immense tragedy for those who lived on to see another day, the misery was sought to be alleviated by the Government of India and the State Governments, lending a helping hand to support the survivors. Whatever could serve as measures of relief were taken by Governments to bring life back on track for various classes of people. There were certain classes of men and women, according to their profession, who had to work for others by the nature of their calling, even when most others, for the sake of dear life, were virtually confined to their homes due to lock-downs. These classes of persons, who had to still work on for humanity's sake, comprised not only of a certain category of government servants, but also employees of corporations, the private sector and the self-employed. They shared a common genre to their calling, whosoever was their employer. They were generally doctors, health workers other than doctors, policemen, and, particularly, workers engaged in the task of maintaining cleanliness, like sweepers by whatever name called. These classes of persons were at the time called 'Corona Warriors'. They were so called because they worked at a time for the sake of others when the larger part of humanity stayed away. They risked their lives. As a token of acknowledgment and to keep up their morale, they were hailed as Corona Warriors.

2. At the centrestage of the cause in this writ petition is Smt. Asha, a Sweeper with the Nagar Panchayat, Khaga, District Fatehpur. She is the petitioner Anand Kumar's mother, who died on 27.04.2021, during the peak of the Covid-19 pandemic. According to the petitioner, she died in consequence of the Covid-19 disease that she contracted while discharging her duties in the Nagar Panchayat office. It is the petitioner's case that Smt. Asha discharged her duties up to 24.04.2021 in the office, going about her task as a sweeper, when she was suddenly taken ill. She was otherwise healthy. She experienced chest pain and discomfort. She was taken to the nearby clinic for medical aid. The doctor gave her first aid, but that did not bring relief. The following day, she showed symptoms of Covid- 19 and was admitted on 26.04.2021 to the L2 Facility Raisina Hospital, Allahabad Institute of Medical Sciences, Purein Mod, Khaga, Fatehpur. She was admitted on 26.04.2021 to the said hospital at 5:00 p.m. and died on 27.04.2021 at 10 minutes past eight in the morning hours. The death summary/ death certificate issued for the petitioner's mother, annexed at page No.20 of the paper-book, in the column of diagnosis, says, “ Covid 19 Pneumonitis”. The column, that reads death summary, is blank. The certificate is signed by the Medical Officer on duty at L2 Facility Raisina Hospital, Allahabad Institute of Medical Sciences, Fatehpur.

3. The petitioner's case is that his mother died of Covid-19. After the petitioner's mother passed away, as he says, on account of the Covid-19 pandemic, he lodged two claims with the respondents. The first was one, seeking compassionate appointment for himself, and the other for the payment of ex gratia sum of Rs.50 lacs, that was directed to be provided by the State Government to the dependents of employees, engaged in the prevention, control and treatment of the Covid- 19 disease, who died in consequence of contracting the virus. The petitioner claimed compassionate appointment on account of his mother's demise as well as payment of the ex gratia sum of money by an application dated 08.07.2021, accompanied by ten documents in support of the claim. The petitioner, in the said application, referred to an earlier application dated 28.06.2021 that he had made to the Nagar Panchayat, Khaga, claiming the ex gratia sum of Rs.50 lacs. He said that the application was withheld for a week and then rejected. The petitioner, in his application dated 08.07.2021 under reference, which was addressed to the Director, Local Bodies, U.P., Lucknow, claimed both payment of the ex gratia sum of Rs.50 lacs and appointment on compassionate grounds as a dependent of the deceased, Smt. Asha.

4. When the petitioner's twin claims, as aforesaid, were not decided, he instituted Writ-A No.11949 of 2021 before this Court, seeking a direction to the respondents to consider his claim for compassionate appointment. This Court disposed of the last mentioned writ petition vide order dated 20.09.2021, directing respondent No.4 to that writ petition to decide the petitioner's application for grant of compassionate appointment expeditiously, preferably within a period of three months from the date of receipt of the application along with a web- generated copy of the order. After the service of the said order, the Executive Officer, Nagar Panchayat, Khaga proceeded to reject the petitioner's twin claim to compassionate appointment as well as payment of the ex gratia sum of Rs.50 lacs, for reasons indicated in the order dated 11.11.2021 passed by the said Officer.

5. Aggrieved, this writ petition has been instituted.

6. On 25.11.2022, a counter affidavit was filed on behalf of the Executive Officer and the Chairman of the Nagar Panchayat, Khaga, District Fatehpur, to which the petitioner filed a rejoinder on 09.08.2023. In compliance with this Court's order dated 31.10.2023, when the petition was admitted to hearing and certain directions issued, asking the District Magistrate, Fatehpur to file her personal affidavit, a personal affidavit of the District Magistrate, dated 15.11.2023 has been filed. In compliance with the further order dated 12.12.2023 passed by this Court, the Additional Chief Secretary, Revenue Department, Government of U.P., Lucknow, filed a personal affidavit on 18.01.2024, reiterating the Government's stand. A counter affidavit was then put in on behalf of respondent No.3, the District Magistrate, Fatehpur on 29.04.2024.

7. During the course of hearing, on 29.04.2024, it was pointed out by the Court that the stand taken by the Additional Chief Secretary, Revenue Department in his affidavit was not prima facie tenable. However, since the matter appeared to be sensitive and one relating to the award of ex gratia sum of money to a Covid-19 victim, a Safai Karmi, where an event against the State, would entail substantial financial consequences, the Court thought it appropriate to grant opportunity to the Principal Secretary to appear in person and explain matters. On 25.07.2024, Guru Prasad, Principal Secretary, Revenue, Government of U.P., Lucknow appeared in person and explained the conditions attending the policy for grant of ex gratia relief to Covid-19 victims at the relevant period of time. We have noted in our order dated 25.07.2024 whatever the Principal Secretary had to say, and to which, necessary allusion would be made during the course of this judgment. On 25.07.2024, the learned Counsel for all the parties were heard finally and judgment reserved.

8. Heard Mr. Rajesh Yadav, learned Counsel for the petitioner and Mr. Jagan Nath Maurya, learned Chief Standing Counsel assisted by Ms. Monika Arya, learned Additional Chief Standing Counsel appearing on behalf of the State.

9. We have duly considered the submissions advanced by learned Counsel for the parties and examined the records.

10. So far as one limb of the petitioner's claim, to wit, his request to be granted compassionate appointment as a dependent of his deceased mother is concerned, it was rejected by the respondent–Nagar Panchayat on ground that the petitioner's father, that is to say, the deceased's husband, Gopal Das, was a Naib Moharrir with the Nagar Panchayat. The attention of the Court was invited to Rule 5(1) of the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (for short, 'the Rules of 1974'), as amended up to date, to point out that a deceased government servant's dependent is eligible for a consideration for appointment under the Rules of 1974, if the deceased's spouse is not a government servant or already employed under the Central Government or a State Government or a Corporation, owned or controlled by the Central Government or the State Government. Here, the deceased's spouse, her husband being employed with the Nagar Panchayat as a Naib Moharrir, the claim under the Rules of 1974 for a compassionate appointment was not maintainable. A bare reading of Rule 5 of the Rules of 1974 does not brook doubt that the petitioner's father and the deceased's husband being in the employ of the Nagar Panchayat on the date of the petitioner's mother's demise, he does not possess a valid candidature at all for compassionate appointment. This part of the petitioner's claim was, therefore, rightly rejected by the respondents. No exception can be taken to it.

11. During the course of hearing, learned Counsel for the parties candidly said that the real issue in this petition is about the petitioner's entitlement to receive the ex gratia sum of Rs.50 lacs on account of her mother's demise in harness while detailed to duty for the prevention, control and treatment of the Covid-19 infection.

12. It is true that being essentially a fiscal matter, and a fortiori, a pure policy decision for the State Government in such cases, it was for the Government to take stock of their resources before extending relief to victims of the Covid-19 pandemic, even of the petitioner's class. This Court cannot direct the State Government to provide financial relief by way of ex gratia or pay a particular sum of money ex gratia to the dependents of victims, who perished on account of Covid-19 while detailed to duty for the prevention, control and treatment of the Covid-19. This is not a case where the Court is called upon to judge a case of negligence against the employers or a failure to protect the employee’s right to life, the employers being functionaries of the State, entitling the dependents to damages or compensation. It is about the grant of ex gratia sum of money to a particular class of employees, to which the petitioner claims to belong, who have been extended that benefit under the Government’s policy. It is in this context said that the Court cannot thrust a policy upon the Government, burdening the exchequer.

13. The position is, however, different if a State Government indeed formulates a policy to compensate the Covid-19 victims of a particular class and subjects it to certain conditions, which are then applied by the officers of the State Government responsible to implement the policy or the Government themselves in a manner that makes application of the policy, either arbitrary or discriminatory, or may be even whimsical. If that is the case, this Court can certainly step in to ensure that the benefit of the policy is made available to all victims of the scourge, free from arbitrariness, discrimination or the whim and caprice of officers charged with the responsibility to extend benefits under the policy. This should take us straight to what this policy of the State Government is about the payment of ex gratia sum of money to the dependents of employees, who have perished in the Covid-19 pandemic, contracting the virus after being detailed to duty in aid of prevention, control and treatment of the Covid-19 disease.

14. The policy, that provides for the payment of an ex gratia sum of Rs.50 lacs to the dependents of such employees, has been introduced by the State Government through Government Orders; and, through subsequent Government Orders, it has evolved to more definitive terms for its application, involving procedure. The most in regard to the policy applicable for the payment of Rs.50 lacs ex gratia relief to the dependents of employees of the Government, autonomous bodies etc., is to be found in the personal affidavit of the District Magistrate, Fatehpur as well as the Additional Chief Secretary, Revenue Department, Government of U.P., Lucknow. Both these affidavits carry a copious detail of the Government Orders issued from time to time, introducing and refining the policy as also copies of the relevant Government Orders, annexed as annexures to these affidavits. We would, for the most, rely on the District Magistrate's personal affidavit.

15. The policy to compensate dependents of victims of the class of employees under consideration was introduced vide Government Order No.249/"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

16. The Government Order dated 11.04.2020 was promptly amended by Government Order No.249(2)/एक-11-2020-04(जी)/ 2015-टी0 सी0, also dated 11.04.2020. The amending Government Order dated 11.04.2020, in its material part, provides:

17. The next Government Order, that further evolved the policy for payment of the ex gratia sum to dependents of employees of the specified class, was issued on 22.06.2021. The material part of the Government Order dated 22.06.2021 reads:

18. Forms-1 and 2, appended to the Government Order dated 22.06.2021, are set out hereinbelow:

19. The last to be issued on the subject is a Government Order dated 26.07.2021. This further details requirements for the grant of benefit under the policy and specifies what documents would be required to be furnished to extend the necessary ex gratia relief to the dependents of an employee of the specified class, becoming a victim of the Covid-19. The Government Order dated 26.07.2021, in its material part, reads:

20. Now, the District Magistrate says in her personal affidavit that after this Court made the order dated 31.10.2023, requiring her to put in her personal affidavit, she, with a view to ascertain the correct facts, vide her order dated 10.11.2023, constituted a three-member committee, headed by the Additional District Magistrate (Judicial), Fatehpur along with the Chief Medical Officer, Fatehpur and the Chief Treasury Officer, Fatehpur, directing them to submit an inquiry report within two days. It is said in paragraph No.9 of the District Magistrate's personal affidavit that the Committee as aforesaid, constituted by her, submitted their report, after receiving reports from the Executive Officer, Nagar Panchayat Khaga, Fatehpur, the Chief Medical Officer, Fatehpur and a written statement dated 14.11.2023 from the petitioner. In paragraph No.9 aforesaid, as regards the petitioner's claim for the ex gratia sum of Rs.50 lacs, the report of the Executive Officer, Nagar Panchayat, Khaga, that was taken into consideration by the Committee appointed by the District Magistrate, is quoted for the material part of it. The quoted portion of the report in paragraph No. 9(a) of the District Magistrate's personal affidavit reads:

21. The Chief Medical Officer's report, on the basis of which the Additional District Magistrate (Judicial)'s Committee submitted their report, also quoted in paragraph No.9(b) of the District Magistrate's personal affidavit, reads:

22. The statement of the petitioner dated 14.11.2023 before the Inquiry Committee, that the District Magistrate appointed, has been quoted in the District Magistrate's personal affidavit in paragraph No.9(c), which reads:

23. The Committee, that the District Magistrate appointed, headed by the Additional District Magistrate (Judicial), submitted its report, also dated 14.11.2023, whose findings as to the petitioner's claim for the ex gratia sum of money on account of his mother's death, extracted in paragraph No.10 of the District Magistrate's affidavit, read:

24. The stand of the District Magistrate in paragraph Nos.12, 13, 14 and 15 of her personal affidavit to negate the petitioner's claim, in the first place, is that there is no evidence to show, such as a certificate of the Office Superintendent concerned, that the deceased was detailed to any duty for the prevention, control and treatment of the Covid-19 disease; and, in the second, there is no lab report/ test report or certification by the Chief Medical Officer, Fatehpur, that the deceased, Smt. Asha died of Covid-19 infection. In the absence of these documents, there is no fulfillment of the conditions stipulated in the Government Orders dated 11.04.2020, as amended on the selfsame date, the Government Order dated 22.06.2021 and the Government Order dated 26.07.2021, entitling the petitioner to receive the ex gratia sum of Rs.50 lacs on account of his mother's demise. The Additional Chief Secretary (Revenue), Government of U.P., Lucknow has refuted the petitioner's claim more or less on the same grounds as those set forth in the District Magistrate's personal affidavit. In addition, the Additional Chief Secretary has appended along with his affidavit a copy of the order dated 16.12.2023 passed by the District Magistrate, Fatehpur, rejecting the petitioner's claim for payment of the ex gratia sum of Rs.50 lacs on grounds already indicated. The order dated 16.12.2023 has been brought into existence pending this writ petition. If the stand of the respondents is not accepted by us, the order dated 16.12.2023, annexed as Annexure No.8 to the Additional Chief Secretary's affidavit filed on 18.01.2024, would have to be quashed, notwithstanding the fact that this order has not been challenged by the petitioner through an amendment. The order is one that has come into existence pendente lite after we passed orders dated 31.10.2023. It would be too technical to insist upon pain of fatal consequences to the petitioner's claim that the petition ought have been amended to challenge the District Magistrate's order dated 16.12.2023. The validity of this order would have to be judged within the frame of the writ petition that the petitioner originally instituted.

25. Since the matter involved financial consequences and it was about the application of the Government’s policy to pay ex gratia uniformly, we gave opportunity to the Principal Secretary (Revenue) to come forward in person and explain the Government’s stand, if he so desires. Guru Prasad, Principal Secretary (Revenue), Government of U.P., appeared before this Court in person and explained the conditions of the policy for award of ex gratia compensation to the dependents of Covid-19 victims at the relevant period of time. He highlighted that feature of the policy, which says that ex gratia compensation is to be awarded to those employees who were detailed to duty in connection with prevention, control and treatment of Covind-19. He said before us that the petitioner’s mother, though a Safai Karmi, was not assigned to duty in connection with prevention, control and treatment of the Covid-19 disease. He explained at length features of the policy, which are more or less the same, that have been said on affidavit.

26. Now, as is apparent, the petitioner's claim has been rejected on two counts substantially. The first is the lack of evidence to show that his mother was detailed either by the Head of Office or the District Magistrate to any duty involving the prevention, control and treatment of the Covid-19 disease; and, secondly, the lack of evidence to show in the manner prescribed or by other evidence aliunde that she died of Covid- 19 infection. As already remarked, it is not our province to formulate policies for the Government, particularly, those entailing financial burden on the exchequer. If the State Government had not formulated the policy carried in the Government Orders dated 11.04.2020, 22.06.2021 and 26.07.2021, it would be no business of ours to say that a policy be framed for extending financial aid ex gratia even to those dependents of victims of the Covid-19 pandemic, who were detailed to duty for the prevention, control and treatment of the Covid-19 disease and died in consequence. But, once the State Government have come up with a policy to extend this aid, as already remarked in this judgment, it is our bounden duty to ensure that the policy is applied in an evenhanded, fair and reasonable manner. We have to ensure that no one entitled under the policy is arbitrarily or whimsically excluded by resort to any irrational demand or standard, or in any other similar fashion, when substantially entitled in terms of the policy.

27. It is true that in the successive Government Orders, the application of the policy has been honed through progressive refinement of standard paper work, including documents required to support a claim for the ex gratia sum of Rs.50 lacs for a dependent of an employee, covered by the policy. It would, in our clear opinion, be very arbitrary to exclude genuine and bona fide claims from consideration, merely because the necessary documents or papers in punctilious detail are not available. Of course, it has to be ascertained if indeed the deceased fulfilled the substantial criteria prescribed by the three Government Orders, entitling his/ her dependents to the ex gratia monetary relief. The twin substantial requirements for the entitlement are the facts that the employee concerned was detailed to duty regarding prevention, control and treatment of the Covid-19 disease and that he/ she, while discharging such duty, contracted the virus, leading to his/ her death.

28. There are two prescribed forms appended to the Government Order dated 22.06.2021. The first relates to the Covid-19 Duty Certificate, either signed by the District Magistrate or the Head of Office of the deceased, and the other is Form-2, appended to the said order, which is the Covid-19 Death Certificate required to be issued by the Chief Medical Officer of the District, where the deceased was posted. These requirements have been further enlarged and refined by the Government Order dated 26.07.2021, making it a total of seven documents to be annexed to any claim by the dependent(s) of a deceased for award of the ex gratia sum payable under the Government Order dated 11.04.2020. The Government Order dated 11.04.2020, as amended by the subsequent order of the selfsame date, required the production of a certificate issued by the Head of Office that the employee concerned was engaged in the prevention, control and treatment of the Covid-19 disease and a certificate from the Chief Medical Officer that he/ she died of Covid-19 infection. Though, certificates in Forms 1 and 2 could have been granted after the Government Order dated 22.06.2021 came to be issued and even documents drawn up for the deceased Asha, that are the requirement of the Government Order dated 26.07.2021, later on, but these could not have been there at the time when Asha died. She died on 27.04.2021, that is to say, after the issue of the Government Order dated 11.04.2020 and its amendment of the same date. The later orders had not yet come into existence. Still, that may not be very decisive, as already remarked.

29. It has been mooted with great emphasis on behalf of the State that in the absence of a duty certificate from the Head of Office to show that the deceased was assigned to duty relating to prevention, control and treatment of the Covid-19 and the other certificate regarding her death issued by the Chief Medical Officer, caused by Covid-19 infection, there is absolutely no way that the benefit of the policy can be given to the petitioner. It has to be remembered that the policy that the State Government framed was a beneficial measure introduced at a time when uncertainty about life was in the winds. This was time when the deadly Delta variant of the Covid-19 had struck our country and people perished without a clue about of how they got infected. It was in the air, a truly virulent and deadly infection. We take judicial notice of these facts as all of us have lived through it. This was time when doctors were doing their best to cure everyone brought to hospital in distress, but not much was known how to manage the patient. Some survived; others died. We also take judicial notice of the fact, and the respondents too have not denied it, that patients were admitted to hospital, who were in distress with symptoms of Covid-19 on the presumption that they have been struck by the deadly virus. In the deceased Asha's death summary/ death certificate, it is written by the Medical Officer on duty at the L2 Facility Raisina Hospital, Khaga, Fatehpur for a diagnosis that she was a suspected case of Covid 19 Pneumonitis. Now, the Chief Medical Officer has not certified in Asha's death certificate that she died on account of Covid-19 infection.

30. We are dealing with the second requirement of the Government Orders first, that is to say, the certification if Asha indeed died on account of the Covid-19 infection. We have already indicated the circumstances that prevailed at the time when Asha died. We also must take notice of the report dated 19.08.2021 submitted by the Medical Officer, In-charge, L2 Facility Raisina Hospital, Allahabad Institute of Medical Sciences, Fatehpur (Superintendent, Community Health Centre, Khaga, Fatehpur) quoted in the order impugned dated 11.11.2021 passed by the Executive Officer, Nagar Panchayat, Khaga, District Fatehpur, rejecting the petitioner's claim, which reads:

31. Now, the stand in the impugned order dated 11.11.2021, rejecting the petitioner's claim, reasons on this count that since no sample for the RT-PCR test could be taken before Asha died, it cannot be inferred that she died on account of disease, caused by the Covid-19 infection. There are similar remarks recorded by the District Magistrate, Fatehpur in the latter’s order dated 16.12.2023, that she made during the pendency of the writ petition, rejecting the petitioner's claim. It is said there that from the report of the Executive Officer, Nagar Panchayat, Khaga, District Fatehpur dated 11.11.2021 and the inquiry report dated 14.11.2023 submitted by the Joint Committee, comprising the Additional District Magistrate (Judicial), Fatehpur, the Senior Treasury Officer, Fatehpur and the Chief Medical Officer, Fatehpur, it is evident that Asha was admitted to the hospital on 26.04.2021 at 5:00 p.m. with breathing difficulty and poor oxygen level. It is, particularly, said that she was admitted to the L2 Facility Raisina Hospital, Khaga, Fatehpur (Community Health Centre, Khaga, Fatehpur). She was treated, assuming her to be a patient of Covid-19 disease. But, on 27.04.2021, before her sample for the RT-PCR test could be taken, she died in the morning hours at 8.10.

32. There is often, if not always, a decisive difference between a mathematical inference from facts and a legal one. The respondents have gone by the letter of the Government Orders under reference to find against the petitioner on this count, as there is no certificate issued by the Chief Medical Officer of the District, saying that she died on account of Covid- 19 infection. The Government Order issued later on would require the fact to be verified by the Chief Medical Officer in the prescribed proforma based on the RT-PCR or the Rapid Antigen test with its date; or else certify the fact on the basis of some other source, which the Chief Medical Officer would have to mention in the certificate. The other source, as suggested in paragraph No.23 of the counter affidavit filed on behalf of the District Magistrate, Fatehpur (in her personal affidavit) would indicate that it could be a CT Scan of the chest. This too has apparently not been done. The Chief Medical Officer has, therefore, not issued the required certificate that Asha died on account of disease caused by Covid-19 infection.

33. There are two robust and sound lines of reasoning, on the basis of which, one would reach the inescapable conclusion that Asha indeed died of Covid-19 disease. The first is the fact that Asha, according to the report of the Medical Officer, L2 Facility Raisina Hospital, Khaga, Fatehpur, where she breathed her last, was admitted on 26.04.2021 at 5:00 p.m. with breathing difficulty and a low oxygen level. She was treated as a Covid-19 patient, assuming her to be so. She died on 27.04.2021 at 8.10 a.m., before her RT-PCR test sample could be secured. Now, this description of Asha's condition, together with the fact that the month of April, 2021 was time when the Delta variant had wreaked havoc with a widespread Covid-19 disease and death, would lead anyone, even a doctor in those times, to infer, short of a tangible medical test, that she most probably died of Covid-19 infection. The symptom of respiratory distress with low oxygen levels, followed by death within a few hours of her admission to the hospital, are unmistakable symptoms of the Covid-19 disease.

34. It is true that the standard set by the three Government Orders and strict medical protocol would require verification by means of the RT-PCR test or the Rapid Antigen, or may be a CT Scan of the chest, but that was not done. In the absence of the prescribed medical tests, the clinical condition of the deceased at the time when she fell sick and died, would lead any man of ordinary prudence and even a doctor to infer that she most probably, as we remarked above, died of Covid-19.

35. Now, the other reason, on the foot of which we may conclude that the respondents are indeed liable to compensate the petitioner under the Government Orders, is the fact that Asha was admitted to the hospital with all symptoms of Covid- 19 disease and a suspected case thereof. She was treated also as a patient of Covid-19, going by the protocol then in force. It then defies all understanding that if Asha was admitted to hospital on 26.04.2021 at 5:00 p.m., where she lived to see only the next day i.e. 27.04.2021, passing away at 8:10 a.m., what prevented the doctors at the L2 Facility Raisina Hospital, Khaga, Fatehpur, a dedicated Covid-19 Government facility, from doing her Rapid Antigen test or taking a sample for the RT- PCR test, or still more, doing a CT Scan of her chest. Once, in the care of the Government Covid-19 dedicated hospital, it was the first duty of the doctors there to test her for Covid-19 infection according to the prescribed protocol. In not doing the requisite test for the next 15 hours or more, the doctors not only neglected their duty by not adhering to the prescribed medical protocol, but have led the State and the respondents into a position, where burden would rest upon them to show that Asha did not die of Covid-19 disease. After all, the petitioner or the other members of the family conveyed the deceased to the government medical facility for Covid-19 patients with extreme symptoms of respiratory distress and poor blood oxygen level. She was treated as a Covid-19 patient, but never tested for it. What else could the deceased or her attendants have done in the circumstances It was for the doctors at the Government Covid-19 dedicated L-2 Hospital to test Asha for the virus. This case is not about medical negligence, but about the State's answerability in paying ex gratia (according to their policy) to the petitioner, for Asha's death, in a fair and evenhanded manner. A lapse of this kind by doctors at a Government Covid- 19 Facility Hospital would certainly saddle the respondents with the burden to show that Asha did not die of Covid-19 disease. Else, in the totality of circumstances, it has to be inferred that Asha indeed died of Covid-19 infection.

36. We have already remarked that the policy carried in the Government Orders dated 11.04.2020, 22.06.2021 and 26.07.2021 is a welfare measure of the State to bring succor to the dependents of a certain class of citizens, that is to say, employees of the Government, the Public Sector Undertakings, the Local Bodies, detailed to duty in connection with prevention, control and treatment of the Covid-19, who contracted the virus during the course of their duty and died. In applying a policy of this kind, which is essentially a keen welfare measure adopted by the State, a purposive approach has to be adopted. It cannot be a literal, mathematical or a precise one, like that while interpreting a fiscal statute. If circumstances do suggest strongly that the death of an employee, otherwise entitled, happened on account of the Covid-19 disease, a strict adherence to the necessary certificates, would be utterly out of place. More often than not, it is difficult in such trying times for the dependents of a genuine victim to secure the necessary documents or ensure every medical test. If the approach of literal insistence on every detail of the three Government Orders is countenanced, the most genuine claims, which appear to be the case with the petitioner, in all likelihood, would be defeated. We think that the Government, the District Magistrate and the Executive Officer of the Nagar Panchayat, ought to have drawn a reasonable inference from the report of the Medical Officer, L2 Facility Raisina Hospital, Allahabad Institute of Medical Sciences, Khaga, Fatehpur dated 19.08.2021, to find for the petitioner that his mother (Asha) indeed died of Covid-19 disease.

37. There are some other reasons as well to reach the same conclusion, that is to say, in addition to the ‘two lines of reasoning’, adverted to hereinbefore.

38. We must remark in connection with the certification of death and its cause, apart from all that we have said above about the breach of medical protocol in testing Asha for her suspected infection, that it was the duty of the Medical Officer, L2 Facility Raisina Hospital, Khaga, Fatehpur or the Chief Medical Officer of the District to issue an accurate and correct death certificate, clearly certifying the fact if she died due to Covid-19 disease. If there was any other cause, that too should have been mentioned clearly in Asha's death certificate. In not doing that also, the Medical Officer, L2 Facility Raisina Hospital, Khaga, Fatehpur and the Chief Medical Officer have failed to discharge their duties, further making the State liable under their existing policy for the payment of ex gratia sum of money on ground that Asha died due to Covid-19. The duty of the appropriate authority of the State, which we think, in this case, would both be the Medical Officer, L2 Facility Raisina Hospital, Khaga, Fatehpur and the Chief Medical Officer in certifying the cause of death being on account of Covid-19 disease or some other cause, in cases where Covid-19 relief is expected, has been laid down by the Supreme Court in Reepak Kansal v. Union of India and others, (2021) 9 SCC 251, where it is observed:

39. There is yet another aspect of the matter. It is not a case, where the petitioner’s claim, on the basis of record, whatever available, has been considered by a designated committee of doctors and other officers of the State, to take a decision on behalf of the primary decision maker, which is invariably done in such cases. After all, a claim under the Government Orders dated 11.04.2020, 22.06.2021 and 26.07.2021 should have been objectively considered by a committee with doctors and some officers of the State, who could review the entire material and take an informed decision, if the petitioner was entitled to the benefit of the ex gratia sum of money. Here, what has happened is that the petitioner’s claim has been rejected by two Authorities, to wit, the Executive Officer of the Nagar Panchayat, where the deceased served, and pending this petition, by the District Magistrate, holding it virtually not maintainable – not maintainable because the requisite certificates were not appended or produced by the petitioner. We have already shown that the grant or issue of the requisite certificate or necessary action to form the basis of those certificates, had to be undertaken by doctors, serving the respondents’ establishment themselves. If they have not issued those certificates, a committee ought have been there, to review the entire material and circumstances, to judge if the petitioner’s case was indeed one, where he was entitled to the ex gratia sum.

40. The standard that a forum, if created by the State Government to review such claims, would have to apply, is preponderance of probability. If certificates necessary under the Government Orders were not there, not on account of the petitioner’s fault or the deceased’s, there are a number of other circumstances that we have already noticed, which a committee appointed for the purpose, or in the absence of a committee of that kind, the officers of the respondents, who passed the impugned order, ought have considered to reach a definitive conclusion, if the deceased, in fact, died on account of Covid- 19 infection. This would include the symptoms of the deceased, when admitted to hospital, the time of death, the fact if there was anything to show that she died of some other disease, the contemporary time during which the deceased fell sick and died with reference to proliferation of the Covid-19 infection and like factors. Absent a committee that we have spoken of to decide such claims, the Authorities, who passed the orders impugned, ought have reviewed the entire evidence about the petitioner’s claim, whatever available on merits, and, not thrown it out mechanically for the want of supporting certificates prescribed under the Government Orders. In this connection, reference may be made to a Bench decision of the Bombay High Court in Mayuri Krishna Jabare v. General Manager, BEST and another, 2022 DGLS (Bom) 3782. The facts necessary to understand the principle in Mayuri Krishna Jabare (supra) can best be recapitulated in the words of their Lordships of the Division Bench:

41. In Mayuri Krishna Jabare, the claim for ex gratia was considered by a committee of doctors, who were experts, but they opined against the claim on account of the absence of an RT-PCR test done while Krishna, the deceased, in that case was alive. Therefore, it seems that in the case under reference, the committee almost did the same kind of a rejection as the two Authorities have done here in passing the impugned order, to wit, the insistence on formal certificates or medical test reports, comprising the RT-PCR test etc. Upon these facts, it was held by the Bombay High Court in Mayuri Krishna Jabare:

42. In Nisha and another v. State of U.P. through Additional Chief Secretary, Panchayat Raj Department, 2022:AHC-LKO:27037, the first petitioner’s husband, Ramesh Kumar Yadav was an Assistant Teacher. He had joined service on 08.12.2020 at a Primary School in the district of Sultanpur. He was detailed to training for election duty on 10.04.2021. He did election duty on 18.04.2021 and 19.04.2021. Immediately, thereafter, he fell sick. On 21.04.2021, he was treated at the Community Health Centre, Baldirai in District Sultanpur for fever and breathing difficulty. As his condition worsened, he was referred to the District Hospital, Sultanpur for emergency treatment. At the Sultanpur District Hospital, a sample for doing Yadav's RT-PCR test was taken. While the lab report had yet to arrive, Yadav died in the night intervening 23/24.04.2021. He died at the young of age of 28 years, just after about four months of joining service. The lab said in their report that they had never received the sample. It is for the said reason that Yadav was not treated as a Covid-19 patient and the petitioner there refused compensation, as it seems under a Government Order dated 01.06.2021, relating to persons, who died within 30 days of Covid-19 infection, while detailed to election duty. The Government Order provided for the payment of an ex gratia sum of money to the dependents. The moot point was if in the absence of the RT-PCR test result, said to be necessary to consider the dependent’s claim of a Covid-19 victim, detailed to election duty, ex gratia could be granted under the Government Order dated 01.06.2021. The State said that it could not be. In rejecting the State’s contention in Nisha (supra), Vivek Chaudhary, J. held:

43. The principle in Nisha was followed by another Single Judge of this Court at Lucknow in Sunita Prajapati v. State of U.P. through Principal Secretary (Home) and others, 2023:AHC-LKO:33575, where too, the RT-PCR report was not there. On similar principle, there was a remand for reconsideration of the claim to the State Authorities in Priyanka v. State of U.P. through Principal Secretary, Finance Department, Lucknow and others, 2024:AHC-LKO:69440.

44. Here, in addition to whatever that we have remarked above, we must come back to the death summary/ death certificate, where the diagnosis is apparently ‘suspected Covid- 19 pneumonitis’. Also, we must hark back to the report dated 19.08.2021 submitted by the Medical Officer, In-charge, L2 Facility Raisina Hospital, Khaga, Fatehpur, which says that the deceased was admitted to the hospital on 26.04.2021 at 5:00 p.m. with breathing difficulty and low oxygen level and treated presuming her to be a Covid-19 patient. Also, the report says that on 27.04.2021, before an RT-PCR test sample could be taken, the deceased died at 8:10 a.m., in consequence whereof, her Covid-19 test could not be done. These symptoms and the fact that the doctors presumed her to be a Covid-19 patient, clinically assessing and treating her as such, can reasonably give rise to the inference that in all probability, Asha died of Covid-19. The diagnosis too was suspected Covid-19 pneumonitis. The cause of death is not mentioned in the relevant column of the death summary. There, the certificate is in breach of the principle laid by the Supreme Court in Reepak Kansal (supra).

45. We also think on the same lines as the reasoning of their Lordships of the Division Bench of the Bombay High Court in Mayuri Krishna Jabare that the fact that the Medical Officer, who admitted the deceased Asha on 26.04.2021, surely diagnosed her clinically to be a Covid-19 patient and treated her accordingly, and that for the said reason, did not do an RT- PCR test promptly. It is quite another matter that he ought have taken an RT-PCR test sample immediately and his inaction in not doing the same would also go against the State, ultimately, about non-fulfillment by the petitioner of the criteria to produce a Covid-19 death certificate, supported by an RT-PCR or Rapid Antigen test report. Apparently, the medical officer, attending on Asha in the month of April, 2021, considering the clinical presentation of the disease, thought that Asha needed immediate attention to treat her Covid-19 disease, rather than waste time in doing an RT-PCR test, because it was too obvious to him. The conditions prevalent at the time, the symptoms that Asha presented and the course of treatment undertaken by the Medical Officer at L2 Facility Raisina Hospital, Khaga, Fatehpur, regarding or presuming her to be a Covid-19 patient, is evidence enough, by any standard of preponderance of probability, to accept the petitioner's case that Asha died of Covid-19 infection. To throw out the claim merely on account of the absence of an RT-PCR or Rapid Antigen test, going by strict letter of the Government Orders, providing for the ex gratia sum of money, betrays an approach on the respondents' part, that is both arbitrary and perverse. Also, to insist on fulfillment of the technical requirements of furnishing the necessary certificates, based on the RT-PCR test report etc., would be to permit the respondents to place premium on their wrong, as it was they, under the circumstances, who could have secured the necessary RT-PCR test, for which there was ample time between the deceased's admission to the dedicated hospital and her demise on the following morning.

46. This would take us to the next and the only surviving question of seminal importance, to wit, if the deceased was detailed to Covid-19 duty. It must be remembered that the month of April, 2021 was time when there was widespread lock- down and all offices were closed. The trains were offtrack and planes away from the skies. All business had closed down and the country was staggering under the scourge. Those, who were detailed to any kind of duty, like doctors, policemen, sweepers, the professionals and volunteers apart, were certainly assigned duties to act in aid of prevention, control and treatment of the Covid-19. The petitioner's mother was a Sweeper, employed with the Nagar Panchayat. The job of sweepers at that time was inextricably connected, wherever they were serving, with prevention and control of Covid-19 proliferation, if not cure. It was this class of workers, who would come in contact with all kind of waste, garbage and dust, that would carry the deadly virus. It is for this reason that sweepers were hailed as Corona warriors.

47. The only question, that is one of fact, is if the petitioner’s mother was detailed to duty in connection with control and prevention of Covid-19 infection. If she was assigned her routine duties as a sweeper and worked during the time, to which the event relates, it matters little, given the nature of the petitioner’s job, if an order was made, expressly saying that she was assigned to render duty in connection with Covid-19 control and prevention. After all, a sweeper’s work, as already remarked, would inherently involve her exposure to the cleaning and sanitation of all that, which, at that time, carried the Coronavirus virus. It was carried on aerosol, sat on metallic surfaces and all other kinds of objects and surfaces, that a sweeper would, but per necessity, have to clean as an inherent part of the job. There is, thus, no point in the case of a sweeper to insist upon the production of a formal order, assigning an employee of this class to duties in connection with Covid-19 prevention and control. The requirement in the Government Order, that postulates production of an order assigning duties in connection Covid-19 prevention and control, has to be understood in the context of a sweeper’s job. For a sweeper, the formal order, whether issued by the competent Authority, that is to say, the Head of Office or the District Magistrate, may not matter at all, so long as it can be shown that the sweeper concerned was rendering duty.

48. Now, it was argued at this stage by Mr. J.N. Maurya, the learned Chief Standing Counsel that a Sweeper, who was voluntarily rendering service, would not satisfy the requirement of the Government Order. This was time, which we have noticed earlier in the judgment, as one when all life had come to a standstill. No one was asked to attend office or do any work, except those required in connection with prevention, control or cure of Covid-19 infection. This, of course, does not include volunteers and it is not the respondents’ case that the petitioner’s mother had volunteered to do her duty. If this was their case, they would have to produce some evidence about it, which is utterly not there. Therefore, the irresistible conclusion is that if the petitioner’s mother was rendering duty at the time she fell sick or within the short span of a few days or a week or so before she fell ill, it was under the directions of the respondents and in connection with control and prevention of Covid-19 infection. There is another aspect of the matter. The stipulation in the Government Orders dated 11.04.2020, 22.06.2021 and 26.07.2021, requiring production of a Covid duty order from the Head of Office or the District Magistrate in one form or the other, which underwent change with successive Government Orders, if insisted upon, would defeat the policy. The ill-fate, that befell the petitioner’s mother, was at a time when the scourge of Covid-19 was at its peak, with people perishing all around. In a scenario such as this, it would be overzealous, if not fantastic, to expect that a Sweeper would proceed to duty, after securing a Covid-19 duty order from the Head of Office or the District Magistrate. It was a time when duties were being assigned and workers detailed to their task in the frontline of Covid control, like an emergency. There was little time for all this kind of paper work, which we think in each subsequent Government Order, has been introduced as a requirement, based more on hindsight. These are matters, again, of which judicial notice must be taken in order to render justice to the dependant(s) of a Covid-19 victim. After all, the very limited things, of which judicial notice can be taken, cannot blind the Court’s vision to what happened all around and with everyone witnessing the fearsome face of the Covid-19 pandemic between the years 2020-21. What we, therefore, conclude is that all that an employee of the class of a Sweeper, or for that matter, a Paramedic, a Doctor or a Policeman, would have to show is that they were on active duty at the time when there was a Covid-19 peak and they got infected. The requirement of producing a Covid-19 duty order cannot be strictly insisted upon, if there is evidence that a worker of the class engaged in frontline control and prevention of Covid-19 was in fact doing his/ her duty. The absence of a Covid-19 duty certificate cannot be regarded as fatal to the petitioner’s cause for this reason.

49. All that now remains to be seen is, if the petitioner's mother, in fact, attended duty at the time when she fell sick or a short time before that. This, again, is of seminal importance, because it seems that in order to further the respondents’ case that the petitioner's mother was not assigned to duties in connection with prevention, control and treatment of the Covid- 19, she has been attempted to be marked absent from 15.04.2021 to 26.04.2021 in the attendance register, maintained by the Nagar Panchayat, a photostat copy of which is annexed as Annexure No.10 to the writ petition. In paragraph No.13 of the writ petition, the petitioner has asserted that his mother expired on account of contracting the Coronavirus and that he was surprised to find that by practice of forgery, the respondents marked her absent in the attendance register, interpolating an 'A' for 'P'. This assertion about the allegation of forgery done in the attendance register in paragraph No.13 of the writ petition, relating to the marking of the deceased's attendance has not been denied specifically in paragraph No.13 of the counter affidavit filed on behalf of respondent Nos.4 and 5 by the Executive Officer of the Nagar Panchayat. He has not pleaded to the said fact specifically at all.

50. In the counter affidavit filed on behalf of the District Magistrate too, contents of paragraph No.13 of the writ petition have not been specifically denied in paragraph No.27. In the preceding paragraphs of the said affidavit also, this particular plea about forgery has not been pleaded to by the District Magistrate. In the rejoinder affidavit, nevertheless, a better photostat copy of the attendance register has been annexed as Annexure No. RA-3. There is no case by any of the respondents that the copy of the attendance register, annexed as Annexure No.10 to the writ petition, is not a copy of the Nagar Panchayat's attendance register, where the deceased would mark her attendance. A perusal of the document at Annexure No.10 and the other copy thereof annexed as Annexure No. RA-1 to the rejoinder affidavit, shows that it is an attendance register of employees relating to the Nagar Panchayat (as the fact has not been denied) for the month of April, 2021. There are, in all, names of ten employees mentioned serially. The name of the petitioner's mother finds mention at serial No.7. It shows that up to the 14th of April, all employees, including the petitioner's mother, have signed this register. From the 15th onwards, the petitioner's mother, who was marked present, has been marked absent by some interpolation, as it seems. The employees at serial No.6, Nand Lal, one at serial No.5, Soordas and others from 1 to 4, 8, 9 and 10, have been marked present with a 'P'. After 15th, there are no signatures of employees on the register, except for the employee at serial No.1.

51. There was no satisfactory answer given by the learned Counsel appearing for the respondents, particularly the Nagar Panchayat, why after 14th, except for the employee at serial No.1 of the register, others were not signing their attendance of the day, and instead, marked present with a 'P'. Since this system was followed in a case of number of employees, the only possible explanation could be that the establishment were trying to prevent employees from touching the attendance register or coming in contact with it, as it would be handled by the clerical staff and officers as well. This seems to be a measure to eschew contagion or infection of Covid-19. In any event, this is not of much consequence. What, however, is relevant is that a perusal of the attendance register makes it evident to the naked eye that the petitioner's mother was marked present from 15th to 26th with a 'P', but this 'P' was changed to an 'A' by very crudely extending a line from the curve of the 'P' to make it look like 'A'.

52. We have no doubt in our mind that the respondents have by one stroke of pen, changed all entries of 'P's in the attendance register for the petitioner's mother from 15th April to 26th to 'A's. It is a case of unmistakable forgery to the naked eye. There is not even an initial made to show if this is some kind of correction with a note indicating by which authority and under what circumstances, the correction, if any, was done. The inescapable inference, therefore, is that the petitioner's mother attended her duty in the month of April until 26th, when she was taken ill and admitted to the hospital. Even if one were to assume that the respondents did not forge the attendance records, showing that the petitioner's mother did not attend duties after 14th April, there is no denial of the fact that she was on duty until 14th April. If she contracted the virus on about 13th or 14th or a couple of days earlier and fell sick after 15th, there was just a period of 12 days until her admission to the hospital and her death the following day i.e. 27.04.2021. Unmistakably, therefore, the petitioner's mother was actively doing her duties as a Sweeper with the Nagar Panchayat until the 26th of April, the day she was admitted to the hospital, or for the worst, until 14th April, 2021, after which she fell sick and admitted to hospital with respiratory distress and low oxygen level, dying the following day. We have already remarked in ample measure that the duties of a Sweeper profoundly exposed him/ her at the relevant time to the deadly virus. The petitioner's mother was similarly exposed, contracted the virus and apparently died of the deadly disease, like the multitude of people, who met the same fate at the time.

53. In the perspective of whatever we have found, this petition deserves to succeed.

54. In the result, this petition succeeds and is allowed. The impugned order dated 11.11.2021 passed by the Executive Officer, Nagar Panchayat, Khaga, Fatehpur and the order of the District Magistrate, Fatehpur dated 16.12.2023, annexed as Annexure No.8 to the personal affidavit of the Additional Chief Secretary, Revenue Department, Government of U.P., Lucknow are hereby quashed. A mandamus is issued to the respondents to pay the petitioner due compensation for his mother's death, treating it to be death for which compensation is payable under the Government Orders dated 11.04.2020, 22.06.2021 and 26.07.2021. This mandamus shall be carried out by the respondents within six weeks of the date of communication of this order.

55. There shall be no order as to costs.

56. Let a copy of this order be communicated to the Secretary, Local Bodies, Government of U.P., Lucknow, the Additional Chief Secretary, Finance Department, Government of U.P., Lucknow, the Director, Local Bodies, U.P., Lucknow, the District Magistrate, Fatehpur and the Executive Officer, Nagar Panchayat Khaga, District Fatehpur by the Registrar (Compliance).