# Girish Kumar Gupta v. State of U.P. &Ors

- **Citation:** (2019) 1 ILRA 836
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-12-23
- **Case number:** Service Single No. 30419 of 2016
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girish-kumar-gupta-v-state-of-u-p-ors-44295
- **Pages:** 7

## Headnote

A. Article 226 of the Constitution of India
- U.P. Recruitment of Dependent of
Government Servant Dying in Harness
Rules, 1974-Section 12 of the Hindu
Adoption and Maintenance Act, 1956-
Delay and latches.

Delay of more than 19 years from the date of
death of the deceased employee in filing the
writ petition- Absence of any satisfactory
explanation- Since the crisis was over the
Petitioner cannot be offered compassionate
appointment- A person who has been adopted
after the death of the employee would not be
entitled to the benefit of the appointment on
compassionate grounds
 (Para 5,9,12,14,20,22,25,27)

Writ petition dismissed.

Case Law discussed/relied upon: -

## Text

836 INDIAN LAW REPORTS ALLAHABAD SERIES
entitled to cost which I quantify to Rs.
5,000/- against respondents- 3 and 4.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.12.2016

BEFORE
THE HON'BLE RAKESH SRIVASTAVA, J.

Service Single No. 30419 of 2016

Girish Kumar Gupta ...Petitioner
Versus
State of U.P. &Ors. ...Respondents

Counsel for the Petitioner:
P.K. Mishra

Counsel for the Respondents:
C.S.C., Neeraj Chaurasia

A. Article 226 of the Constitution of India
- U.P. Recruitment of Dependent of
Government Servant Dying in Harness
Rules, 1974-Section 12 of the Hindu
Adoption and Maintenance Act, 1956-
Delay and latches.

Delay of more than 19 years from the date of
death of the deceased employee in filing the
writ petition- Absence of any satisfactory
explanation- Since the crisis was over the
Petitioner cannot be offered compassionate
appointment- A person who has been adopted
after the death of the employee would not be
entitled to the benefit of the appointment on
compassionate grounds
 (Para 5,9,12,14,20,22,25,27)

Writ petition dismissed.

Case Law discussed/relied upon: -

1. State of M.P. v. Nandlal Jaiswal, (1986) 4
SCC 566

2. City and Industrial Development Corpn. v.
Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC
168

3. Gian Singh Mann v. High Court of Punjab &
Haryana, (1980) 4 SCC 266

4.Karnataka
Power
Corpn.
Ltd.
v.
K.
Thangappan, (2006) 4 SCC 322

5. T.N. v. Seshachalam, (2007) 10 SCC 137

6. Umesh Kumar Nagpal v. State of Haryana &
Ors, (1994) 4 SCC 138

7. Union of India &Ors. v. Bhagwan Singh,
(1995) 6 SCC 476

8. State of J&K &Ors. v. Sajad Ahmed Mir,
(2006) 5 SCC 766

9. Eastern Coalfield Limited v. Anil Badyakar
&Ors., (2009) 13 SCC 112

10. Jai Prakash Vs. State of U.P. &Anr. 2003
(53) ALR 197 (E-3)

(Delivered by Hon'ble Hon'ble Rakesh
Srivastava, J.)

1. One Surya Lal, an Assistant
Teacher at NirmalaJunior High School,
Chitauna Kala, District Ambedkar Nagar
unfortunately
died
in
harness
on
01.09.1997 leaving behind his widow
Nirmala Devi.

2. On 19.12.2016, after almost 19
years and 3 months to be precise, Girijesh
Kumar Gupta, the petitioner, claiming
himself to be the adopted son of Surya Lal
has preferred this writ petition praying
inter alia for the following relief:-

(i) Issue a writ, order or direction in
the nature of mandamus commanding to
the opposite parties to appoint the
petitioner on compassionate ground under
Dying in Harness Rules due to death of
his father late Surya Lal as per his
qualification, in the interest of justice.
1 All. Girish Kumar GuptaVs. State of U.P. and Ors.
837

3. It is alleged that on 01.02.2002,
15.06.2002
and
24.12.2002
representations were made by Nirmala
Devi seeking compassionate appointment
in place of her husband but no action was
taken by the authority concerned. It is
further alleged that in the year 2002 the
petitioner
passed
his
intermediate
examination and on attaining the age of
majority moved a representation on
10.10.2003
seeking
compassionate
appointment after getting 'no objection'
from his mother Nirmala Devi and since
then the petitioner is running from pillar
to post but without any success. It has
been stated that, in the meantime, in the
year 2013, the petitioner did his post
graduation
and
on
27.09.2016
the
petitioner moved another representation to
the authorities. Alleging inaction on the
part of the respondents, the petitioner has
filed the present writ petition claiming
appointment on compassionate grounds.

4. Heard Sri P.K. Mishra, learned
counsel
for
the
petitioner,
learned
Standing Counsel appearing on behalf of
respondent nos. 1 to 3 and Sri Neeraj
Chaurasiya, learned counsel for the
respondent no. 4 and perused the record.
The writ petition deserves to be dismissed
for more than one reason.

5. The power to issue a writ is
discretionary. Delay and laches is one of
the factors that requires to be borne in
mind by the courts while exercising its
equitable jurisdiction. If the petitioner
wants to invoke the jurisdiction of a writ
court, he should come to the Court at the
earliest possible opportunity. Although
there is no period of limitation provided
for filing a writ petition, ordinarily it
should be filed within a reasonable time.
It is trite that in the absence of a
satisfactory explanation for any inordinate
delay in filing the writ petition, the
discretionary jurisdiction may not be
exercised in favour of those who approach
the Court after a long time.

6. In State of M.P. v. Nandlal Jaiswal,
(1986) 4 SCC 566, the Apex Court has held
that the power of the High Court to issue an
appropriate writ under Article 226 of the
Constitution of India is discretionary and the
High Court in the exercise of its discretion
does not ordinarily assist the tardy and the
indolent or the acquiescent and the lethargic.

7.

In
City
and
Industrial
Development Corpn. v. Dosu Aardeshir
Bhiwandiwala, (2009) 1
SCC 168,
dwelling upon the jurisdiction under
Article 226 of the Constitution of India,
the Apex Court has held that the Court
while exercising its jurisdiction under
Article 226 is duty-bound to inter alia
consider as to whether the person
invoking the jurisdiction is guilty of
unexplained delay and laches.

8. The learned counsel for the
petitioner
has
submitted
that
the
petitioner was genuinely pursuing his
remedy
before
the
authorities
concerned, and only when he realised
that the relief would not be forthcoming,
has he approached this court. In this
regard, the learned counsel for the
petitioner has, painstakingly, taken this
Court through the representations dated
10.10.2003 and 27.09.2016 alleged to
have been made by the petitioner to
various authorities.

9. Mere filing of representations
cannot be considered to be a sufficient
reason for the delay in approaching
the Court for grant of relief. In Gian
838 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh Mann v. High Court of Punjab
& Haryana, (1980) 4 SCC 266 the
Apex Court has held as under:

" ....seems to us that the claim is
grossly belated. The writ petition was
filed in this Court in 1978, about eleven
years after the dates from which the
promotions are claimed. There is no valid
explanation for the delay. That the
petitioner
was
making
successive
representations during this period can
hardly
justify
our
overlooking
the
inordinate delay. Relief must be refused
on that ground."

(emphasis supplied)

10. In Karnataka Power Corpn. Ltd.
v. K. Thangappan, (2006) 4 SCC 322 the
Apex Court opined as under:

"10. It has been pointed out by this
Court in a number of cases that
representations would not be adequate
explanation to take care of delay. This
was first stated in K.V. Rajalakshmiah
Setty v. State of Mysore. This was
reiterated in Rabindranath Bose case by
stating that there is a limit to the time
which can be considered reasonable for
making
representations
and
if
the
Government
had
turned
down
one
representation the making of another
representation on similar lines will not
explain the delay. In State of Orissa v.
Pyarimohan
Samantaray
making
of
repeated representations was not regarded
as satisfactory explanation of the delay. In
that case the petition had been dismissed
for delay alone.

(See State of Orissa v. Arun Kumar
Patnaik also.)"

(emphasis supplied)

11. In State of T.N. v. Seshachalam,
(2007) 10 SCC 137 the Apex Court has
ruled that filing of representations alone
would not save the period of limitation.

12. In the present case, the cause of
action, if any, accrued to the petitioner
way back in the year 2003, when he
attained the age of majority. Admittedly,
the petitioner made a representation on
10.10.2003
seeking
compassionate
appointment
but
instead
of
taking
recourse to the remedy available to him
under law, the petitioner took more than
19 years from the date of death of Surya
Lal to approach this Court by means of
the present writ petition. In the absence of
any satisfactory explanation for the
inordinate delay in filing the present writ
petition, the writ petition is liable to be
dismissed on the ground of delay and
laches alone.

13. The learned counsel for the
petitioner
has
submitted
that
the
penurious state of the petitioner is still
continuing and the petitioner being the
adopted son of late Surya Lal is entitled to
compassionate appointment under the
U.P.
Recruitment
of
Dependent
of
Government Servant Dying in Harness
Rules, 1974 (for short 'Rules').

14. It is settled that appointment in
public services are to be made strictly in
accordance with merit and in accordance
with the procedure provided in the rules.
However,
compassionate
appointment
under the Dying in Harness Rules is an
exception to the general rule. When an
earning member of a family unexpectedly
passes away, his whole family is
subjected to misery and privation. To
mitigate the hardship caused on account
of sudden change in the status and affairs
1 All. Girish Kumar GuptaVs. State of U.P. and Ors.
839
of the family and to save the family of the
deceased
Government
servant
from
destitution, the concept of compassionate
appointment has been carved out. Thus,
the object of providing employment to the
dependent of a Government servant dying
in harness in preference to anybody else is
to enable the penurious family of the
deceased employee to tide over the
sudden financial crisis and not to provide
employment. The mere death of an
employee does not entitle his family to
compassionate appointment. By a series
of judgments of the Apex Court, it is
settled that compassionate appointment is
not a vested right which can be exercised
at any time in future. It is not a mode of
employment and cannot be claimed and
offered after a long lapse of time and after
the crisis is over.

15. The object of compassionate
appointment has been succinctly stated by
the Apex Court in Umesh Kumar Nagpal
v. State of Haryana & Ors, (1994) 4 SCC
138 as under:-

"2. ...The whole object of granting
compassionate employment is thus to
enable the family to tide over the sudden
crisis. The object is not to give a member
of such family a post much less a post for
post held by the deceased. What is
further, mere death of an employee in
harness does not entitle his family to such
source of livelihood. The Government or
the public authority concerned has to
examine the financial condition of the
family of the deceased, and it is only if it
is satisfied, that but for the provision of
employment, the family will not be able
to meet the crisis that a job is to be
offered to the eligible member of the
family. The posts in Classes III and IV are
the lowest posts in non-manual and
manual categories and hence they alone
can be offered on compassionate grounds,
the object being to relieve the family, of
the financial destitution and to help it get
over the emergency.
* * *

6. For these very reasons, the
compassionate employment cannot be
granted after a lapse of a reasonable
period which must be specified in the
rules.
The
consideration
for
such
employment is not a vested right which
can be exercised at any time in future.
The object being to enable the family to
get over the financial crisis which it faces
at the time of the death of the sole
breadwinner,
the
compassionate
employment cannot be claimed and
offered whatever the lapse of time and
after the crisis is over."
(emphasis supplied)

16. The principle laid down in the
case of Umesh Kumar Nagpal (supra) has
been reiterated by the Apex Court time
and again. [see Jagdish Prasad v. State of
Bihar &Anr., (1996) 1 SCC 301:
Managing Director, MMTC Ltd., New
Delhi v. Pramoda Dei Alias Nayak,
(1997) 11 SCC 390: State of U.P. v. Paras
Nath, (1998) 2 SCC 412: S. Mohan v.
Govt. of T.N. &Anr., (1998) 9 SCC 485:
Sanjay Kumar v. State of Bihar &Ors.,
(2000) 7 SCC 192]

17. In Union of India &Ors. v.
Bhagwan Singh, (1995) 6 SCC 476,
where the widow and two major sons did
not apply for compassionate appointment
immediately after the death of the
employee
and
an
application
for
compassionate appointment was moved
after 20 years by the minor son of the
deceased, the Apex Court in paragraph 8
of the report held that:
840 INDIAN LAW REPORTS ALLAHABAD SERIES

"It is evident, that the facts in this case
point out, that the plea for compassionate
employment is not to enable the family to
tide over the sudden crisis or distress which
resulted as early as September 1972. At the
time Ram Singh died on 12.9.1972 there
were two major sons and the mother of the
children who were apparently capable of
meeting the needs in the family and so they
did not apply for any job on compassionate
grounds. For nearly 20 years, the family has
pulled on, apparently without any difficulty.
In this background, we are of the view that
the Central Administrative Tribunal acted
illegally and wholly without jurisdiction in
directing the Authorities to consider the case
of the respondent for appointment on
compassionate grounds and to provide him
with an appointment, if he is found suitable."

18. In State of J&K &Ors. v. Sajad
Ahmed Mir, (2006) 5 SCC 766 the Apex
Court held that:

"11..... Once it is proved that in spite
of death of the breadwinner, the family
survived and substantial period is over,
there is no necessity to say "goodbye" to
the normal rule of appointment and to
show favour to one at the cost of the
interests of several others ignoring the
mandate
of
Article
14
of
the
Constitution."

19. In Eastern Coalfield Limited v.
Anil Badyakar &Ors., (2009) 13 SCC
112, immediately after the death of the
employee in the year 1981, initially his
widow
sought
compassionate
appointment. Subsequently on 07.03.1983
the elder daughter staked her claim.
Ultimately
in
pursuance
of
an
understanding among the members of the
family the second daughter's husband was
nominated for seeking appointment and
by an order dated 10.05.1993 he was
given compassionate appointment on
provisional basis, but the competent
authority by its order dated 23.09.1993
cancelled it on the ground that the
appointment could not be given 12 years
after the death of an employee. Upholding
the order dated 23.09.1993, the Apex
Court
held
that
the
compassionate
appointment was not a vested right which
can be exercised at any time in future.
The compassionate employment, it was
held, cannot be claimed and offered after
a lapse of time and after the crisis is over.

20. In the case at hand, after the death
of Surya Lal his widow Nirmala Devi did not
claim appointment under the Dying in
Harness Rules. The representations dated
01.02.2002, 15.06.2002 and 24.12.2002
alleged to have been made by her, do not
carry any receiving. In any case, admittedly,
Nirmala Devi made her first representation
on 01.02.2002, almost 5 years after the death
of her husband and thereafter did not pursue
her case. The petitioner, after attaining the
age of maturity, admittedly, made a
representation
on
15.04.2003
seeking
compassionate appointment and has filed the
present writ petition 13 years thereafter. As
already mentioned above, the compassionate
appointment
is
neither
a
source
of
appointment nor can there be reservation of a
vacancy. It is thus apparent that the petitioner
had some alternative source of livelihood and
his family has been able to pull on without
any difficulty for almost 19 years since the
death of Surya Lal. In view of the settled
legal position, once the crisis is over, the
petitioner cannot be offered compassionate
appointment.

21. There is yet another reason why
the relief prayed for cannot be granted. In
paragraph 8 of his representation dated
27.09.2016 (annexure 5 to the writ
1 All. Girish Kumar GuptaVs. State of U.P. and Ors.
841
petition), the petitioner has categorically
stated that he was adopted by Nirmala
Devi, the widow of Surya Lal by a
registered
adoption
deed
dated
25.08.1999. Admittedly, the petitioner
was adopted by Nirmala Devi after the
death of Surya Lal. Relevant portion of
the representation dated 27.09.2016 is
extracted below:-

Þ8. ;g fd izkFkhZ dh tUefrfFk 10-07-1985 gS
rFkk og Loå lw;Zyky dk nRrd iq«k gS rFkk izkFkhZ
ds firk dh e`R;q ds mijkUr mldh ekrk }kjk
fnukad 25-08-1999 dks jftLVMZ xkksnukek foys[k
}kjk xksn fy;k x;k gS rFkk orZeku esa leLr
vfHkys[kksa esa izkFkhZ dk uke Loå lw;Zyky ds nRrd
iq«k ds :i esa ntZ gSAß
(emphasis supplied)

22. Section 12 of the Hindu
Adoption and Maintenance Act, 1956 (for
short 'Act') which deals with the effect of
adoption being relevant is extracted
below:-

"12. Effect of adoptions.-An adopted
child shall be deemed to be the child of his or
her adoptive father or mother for all purposes
with effect from the date of the adoption and
from such date all the ties of the child in the
family of his or her birth shall be deemed to
be severed and replaced by those created by
the adoption in the adoptive family:

Provided that-

(a) the child cannot marry any person
whom he or she could not have married if he
or she had continued in the family of his or
her birth;

(b) any property which vested in the
adopted child before the adoption shall
continue to vest in such person subject to the
obligations, if any, attaching to the
ownership of such property including the
obligation to maintain relatives in the family
of his or her birth;

(c) the adopted child shall not divest
any person of any estate which vested in him
or her before the adoption."

23. As per Section 12 of the Act, an
adopted child is deemed to be the child of
his or her adoptive father or mother for all
purposes with effect from the date of
adoption and from such date all the ties of
the child with the family of his or her
birth are deemed to be severed and
replaced by those created by adoption in
the adoptive family.

24.

The
object
of
granting
compassionate appointment is to ensure
that the dependents of the deceased are
extended a helping hand. It is not in
dispute that, as per the Rules, on the death
of a Government servant, only a member
of his family, as defined under Rule 3(f)
of the Rules, who is dependent upon such
Government servant is entitled to be given
compassionate appointment. It is also not
in dispute that an adopted son or adopted
daughter is also entitled to compassionate
appointemnt in case of death of his or her
father or mother who is a Government
employee. But when the adoption has
been made after the death of the deceased
employee, by no stretch of imagination
can it be said that the adopted son or
daughter, as the case may be, was
dependent upon the deceased.

25. Since the petitioner became a
member of the adoptive family long after
the death of Surya Lal, the petitioner
cannot be treated to be a dependent of the
deceased in terms of the Dying in Harness
Rules. Since the petitioner was not a
842 INDIAN LAW REPORTS ALLAHABAD SERIES
dependent of the deceased Surya Lal, the
petitioner is not entitled to compassionate
appointment under the Dying in Harness
Rules.

26. In Jai Prakash Vs. State of U.P.
&Anr. 2003 (53) ALR 197, a Division
Bench of this Court has opined as under:-

"7. On the admitted facts, the writ
petitioner having been taken in adoption by
the widow of the deceased a couple of
months after the death of Chhotey Singh,
could not be said to be a dependent member
of the family of the deceased employee
entitled for appointment on compassionate
grounds under the Dying in Harness Rules,
1974. The purpose of the said Rules is to
provide employment to a dependent member
of the family of the deceased employee to
tide over the sudden financial-crisis which
the family of the deceased undergoes
because of the sudden death of the sole bread
earner of the family. The writ petitioner can
in no case be said to be a member of the
family of Chhotey Singh at the time of his
death. He had subsequently acquired the
status of being a member of the family by
way of an adoption made by the widow of
the deceased employee. If the benefit of the
Dying in Harness Rules, 1974 is permitted
even to those who are subsequently adopted
after the death of the employee, it would
open a new channel of employment. This
would encourage employment through
backdoor even to those who were not
actually
Dependants
of
the
deceased
employee and had subsequently acquired
such status by managing to get adopted in the
family of the deceased employee, for the
purposes of getting a job. The present day
unemployment situation prevailing in the
country, where qualified unemployed youth
are queuing up in large numbers desperate to
get Government jobs, is a fact well known to
all and the Courts also cannot shut their eyes
to this reality. Such back door entry of
employment, if permitted, would defeat the
very
purpose
of
appointment
on
compassionate ground. Even those who are
not actually members of the family of the
deceased would in this manner, by
subsequently getting adopted, put forward
their claim and get appointment under the
Dying in Harness Rules.

8. For the foregoing reasons, we have
no hesitation in holding that a person who
has been adopted after the death of the
employee would not be entitled to the
benefit
of
the
appointment
on
compassionate grounds under the Dying
in Harness Rules, 1974."

(emphasis supplied)

27. For the aforesaid reasons, the
writ petition is dismissed on the ground of
delay and laches as well as on merit.

28. There shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.08.2019

BEFORE
THE HON'BLE MANISH MATHUR, J.

Service Single No. 9293 of 2006

G.B. Saxena ...Petitioner
Versus
State Bank of India &Ors. ...Respondents

Counsel for the Petitioner:
K.K.
Gautam,
Madhav
Srivastava,
Madhusudan Srivastava

Counsel
for
the
Respondents: