# Narsingh Rawat v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 520
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-23
- **Case number:** Writ-A No.23396 of 2014
- **Bench:** Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/narsingh-rawat-v-state-of-u-p-ors-49162
- **Pages:** 5

## Headnote

Law
-
Compassionate
Appointment - Claim - Delay - mother of
the petitioner worked as Class IV employee
(Sweeper) in the Institution who died on
29.6.1999 in harness during service period
and at that time, age of the petitioner was 15
years four months and 16 days - Upon
attaining the age of majority the petitioner
applied for compassionate appointment -
Principal
forwarded
the
application
on
22.06.2002 to the D.I.O.S. for consideration
which remained pending - writ petition filed
in year 2014 - Held - there was no delay or
negligence on the part of the petitioner, but
the delay was on the part of the state -
respondents directed to consider the case of
the
petitioner
for
appointment
on
compassionate ground (Para 16)

Allowed. (E-5)

List of Cases cited:

## Text

520 INDIAN LAW REPORTS ALLAHABAD SERIES
of fundamental rights must consistently
endeavour to sustain the said rights and
should strike down their unconstitutional
invasion, it would not be right to ignore the
principle of res judicata altogether in
dealing with writ petitions filed by citizens
alleging
the
contraventions
of
their
fundamental rights. If a plea could have
been taken by a party in a proceeding
between him and his opponent, he would
not be permitted to take that plea against
the same party in a subsequent proceeding
which is based on the same cause of action,
because the principle of constructive res
judicata is based on sound public policy of
finality of judgments.

8. The Supreme Court in its Full
Bench decision in Surya Deo Mishra vs.
State of UP 2007 (1) SLR 546 (All) has
held that the Rules of the Court prohibit
second writ petition for the same cause of
action. Rule 7 of Chapter XXII of the
Allahabad High Court Rules 1952 provides
that where an application has been rejected,
it shall not be competent for the applicant
to move a second application on the same
facts. Even if the petitioner has withdrawn
the earlier writ petition or it is dismissed as
infructuous, without leave to file a fresh
petition, a second writ petition for the same
cause of action is not maintainable.

9. Once the relief is framed in a
particular manner in one writ petition and
such relief is not granted at the time of final
disposal of the writ petition by the Court, it
shall be presumed that relief so claimed
stands rejected.

10. Thus, writ petition therefore,
stands dismissed.

11. Thus, the writ petition is rejected
as not maintainable.
----------
(2023) 1 ILRA 520
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2022

BEFORE

THE HON'BLE RAJIV JOSHI, J.

Writ-A No.23396 of 2014

Narsingh Rawat ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Msanjay Kumar Srivastava, Sri Siddharth
Khare

Counsel for the Respondents:
C.S.C.

A.
Civil
Law
-
Compassionate
Appointment - Claim - Delay - mother of
the petitioner worked as Class IV employee
(Sweeper) in the Institution who died on
29.6.1999 in harness during service period
and at that time, age of the petitioner was 15
years four months and 16 days - Upon
attaining the age of majority the petitioner
applied for compassionate appointment -
Principal
forwarded
the
application
on
22.06.2002 to the D.I.O.S. for consideration
which remained pending - writ petition filed
in year 2014 - Held - there was no delay or
negligence on the part of the petitioner, but
the delay was on the part of the state -
respondents directed to consider the case of
the
petitioner
for
appointment
on
compassionate ground (Para 16)

Allowed. (E-5)

List of Cases cited:

1. Malaya Nanda Sethy Vs State of Orissa & ors.
(S.L.P. (Civil) No. 936 of 2022) dt 20.05.2022

2. St. of Mah. & anr. Vs Ms. Madhuri Maruti
Vidhate 2022 0 Supreme (SC) 1001
1 All. Narsingh Rawat Vs. State of U.P. & Ors.
521
3. Govt. of India & anr. Vs P Venkatesh 2019
(15) SCC 613

4. Central Bank of India Vs Nitin Manu/SC/1151
of 2022

(Delivered by Hon'ble Rajiv Joshi, J.)

1. Heard Sri Siddharth Khare, learned
counsel for the petitioner and Sri Govind
Narain
Srivastava,
learned
Standing
counsel for the State respondent.

2. By means of the present writ
petition, the petitioner seeks a direction in
the nature of mandamus commanding the
respondent nos. 3 and 4 to appoint the
petitioner under Dying in Harness Rules on
any Class IV post in the Institution namely
Amar Shahid Bhagat Singh Inter College,
Rasra, Ballia, District- Ballia.

3. The brief of facts of the present case
are that the mother of the petitioner namely
Janki Devi was working as Class IV
employee (Sweeper) in the Institution namely
Amar Shahid Bhagat Singh Inter College,
Rasra, Ballia, District- Ballia who died on
29.6.1999 in harness during service period.
After the death of his mother, petitioner
applied for appointment on compassionate
ground under the U.P. Recruitment of
Dependents of Government Servants Dying
in Harness Rules, 1974 (herein after referred
to as the 'Rules of 1974') before the Principal
Amar Shahid Bhagat Singh Inter College,
Rasra, Ballia, District- Ballia on several
occasions
thereafter,
Principal
of
the
Institution forwarded the application of the
Petitioner on 22.06.2002 to the District
Inspector of Schools, Ballia for consideration
of
appointment
of
the
petitioner
on
compassionate
grounds,
which
remain
pending till date.

4. Learned counsel for the petitioner
further submits that the petitioner has
completed all the required formalities for
his compassionate appointment under the
Rules of 1974. however, the respondentauthorities did not give any response with
regard to the same. It is further submitted
that there was no delay or negligence on
the part of the petitioner, but the delay on
the part of the state-respondent, the
petitioner was fulfilled all the conditions
for appointment on compassionate ground
under the Rules of 1974. In support of his
contention he placed reliance upon the
recent judgment of Hon'ble Apex Court in
Malaya Nanda Sethy Vs. State of Orissa
and Ors (S.L.P. (Civil) No. 936 of 2022)
decided on 20th May, 2022.

5. On the other hand, learned
Standing counsel submits that at the time of
death, petitioner was minor and his age was
15 years, 4 four month and 16 days. It is
next submitted that application of the
petitioner
for
appointment
of
compassionate ground has been received in
the office of District Inspector of Schools,
Ballia in the year-2020, there is no
questions of delay on the part of the
respondent authority i.e. District Inspector
of Schools, District- Ballia. In support of
his contention he placed reliance upon the
judgment of Hon'ble Apex Court in State
of Maharashtra & Anr Vs. Ms. Madhuri
Maruti Vidhate reported in 2022 0
Supreme (SC) 1001; Govt. of India &
Anr. Vs. P Venkatesh reported in 2019
(15) SCC 613 and Central Bank of India
Vs. Nitin reported in Manu/SC/1151 of
2022 in which, it is held that appointment
on compassionate ground after a number of
years from the death of deceased employee
shall not be entitled.
522 INDIAN LAW REPORTS ALLAHABAD SERIES

6. I have heard the learned counsel for
the parties and perused the record.

7. The mother of the petitioner died in
harness on 26.9.1999 and at that time, age of
the petitioner was 15 years four months and 16
days. The petitioner applied for appointment
on compassionate ground in place of his
mother on attaining the majority before the
Principal of the Institution, who forwarded the
said application along with the relevant
records to the District Inspector of Schools,
Ballia on 22.6.2002, which is apparent from
the annexure no.3 to the counter affidavit. The
annexure C.A.-2 filed along with counter
affidavit is not the report/comment which was
alleged to be sought from the Principal of the
Institution on 26.9.2020, it is only information
after filing the present writ petition and in the
said letter, report was sought form the
Principal of the Institution within one week
which is apparent from the paragraph no.8 to
the counter affidavit.

8. The letter of District Inspector of
Schools, Ballia dated 22.9.2020 is quoted
as under:-

izs"kd]

ftyk fo|ky; fujh{kd

cfy;kA

lsok esa]

iz/kkukpk;Z]

vej 'kghn Hkxr flag b.Vj
dkyst]

jlM+k] cfy;kA

i=kad@ 3626&27@2020&21 fnukad%
26@9@2020

fo"k;& ek0 mPp U;k;ky; bykgkckn
esa ;ksftr ;kfpdk la[;k&23396@2014 esa ikfjr
vkns'k fnukad 23-04-2014 ds vuqikyu gsrq
vk[;k@vfHkys[k eakxs tkus ds lEcU/k esaA

egksn;]

mi;qZDr fo"k; ds lEcU/k esa
voxr djkuk gS fd Jh ujflag jkor iq= tkudh
nsoh }kjk bl vk'k; dk vkosnu i= fn;k x;k gS
fd mudh ekrk Jherh tkudh nsoh Lohij]
fo|ky; esa dk;Zdky ds nkSjku gh mudh fnukad
26-06-1999 dks e`R;q gks x;hA Jh jkor }kjk
viuh ekrk ds LFkku ij e`rd vkfJr dksVs ds
vUrxZr fu;qfDr dh ekax dh x;h gS rFkk bl gsrq
ek0 mPp U;k;ky; bykgkckn esa ;kfpdk
la[;k&23396@2014 Jh ujflag jkor cuke m0
iz0 ljdkj o rhu vU; esa fnukad 23-04-2014 dks
ikfjr vkns'k layXu dj vko';d dk;ZOkkgh gsrq
fuosnu fd;k x;k gSA ek0 mPPk U;k;ky; }kjk
fnukad 23-04-2014 dks ikfjr vkns'k fuEuor&

9.

Learned
Standing
Counsel
representing respondent nos.1 and 2 may
file counter affidavit within a month.
Petitioner will have two week thereafter to
file rejoinder affidavit. Issue notice to
respondent nos. 3 and 4 returnable within
six weeks. Steps may be taken within a
week. List after service of notice.

vr% ek0 mPp U;k;ky; ds mDr
vkns'k fnukad 23-04-2014 ds vuqikyu@izdj.k
fuLrkj.k gsrq Jherh tkudh nsoh dh lsok
vfHkys[k ls lEcfU/kr leLr i=tkr rFkk izdj.k
vcrd yfEcr gksus dk dkj.k dk mYys[k djrs
gq;s vuqiwjd vfHkys[kksa lfgr viuh vk[;k ,d
lIrkg ds Hkhrj bl dk;kZy; dk miyC/k djkus
dk d"V djasa ftlls vxzsRrj dk;Zokgh dh tk
ldsaA

Hkonh;]

g0 viBuh;

1⁄4HkkLdj feJ1⁄2
ftyk fo|ky fujh{kd]

cfy;kA

26@9
1 All. Narsingh Rawat Vs. State of U.P. & Ors.
523

i`0
la0@3626&27@2020&21
rn~fnukad

izfrfyfi& uj flag jkor Ikq= Lo0
tkudh nsoh lkfdu eqgYyk& mRkrjiV~Vh jlM+k
cfy;k dks lwpukFkZ izsf"krA

g0 viBuh;

ftyk fo|ky fujh{kd]

cfy;kA

26@9

10. In turn, Principal of the Institution
replied to the District Inspector of Schools,
Ballia vide letter dated 17.11.2020, in
which, it is stated that the then Principal
namely Mohd. Baseer Ansari has already
forwarded the application of the petitioner
for appointment on compassionate ground
on 22.6.2002 which is pending in the office
of District Inspector of Schools, Ballia.

11. The relevant portion of the letter
dated
17.11.2020
forwarded
by
the
Principal of Institution to the DIOS, Ballia
is quoted as under:-

"mDr ds laca/k esa voxr djkuk gS fd
Jherh tkudh nsoh bl fo|ky; esa prqFkZ deZpkjh
ds :i esa Lohij ds in ij dk;Zjr FkhA lsokdky
esa budh e`R;q fnukad 26-06-1999 dks gks x;hA
fu;ekuqlkj Jherh tkudh nsoh dks e`R;q mijkUr
ifjokfjd isa'ku vkfn buds ifr dk iwoZ esa gh
e`R;q gksus ds dkj.k ugh fn;k x;k ysfdu e`rd
vkfJr fu;ekuqlkj ds vuqlkj e`rd ds ikY; Jh
ujflag jkor dk izLrko rRdkyhu iz/kkukpk;Z eq0
olhj valkjh }kjk e`rd vkfJr dksVs esa fnukad
22-06-2002 dks izsf"kr fd;k x;k tks v|ru
vkids ;gkW vfULrkfjr jgkA 1⁄4Nk;kizfr layXu1⁄2

;gkW ;g Hkh voxr djkuk gS fd Jh
ujflag jkor }kjk dbZ ckj bl fo|ky; dks ,oa
vkids dk;kZy; dks izR;kosnu izLrqr fd;k x;kA
fu;ekuqlkj e`rd ds dqVqEc ds ,d lnL; dks
lsok ;ksftr djus dk izkfo/kku gSA fo|ky; esa
ifj/kkjd ds dqy 15 dh tu'kfDr 'kklu }kjk
fu/kkZfjr gSA orZeku esa dqy 6 ifjpkjd dk;Zjr
gSA bu 6 deZpkfj;ks esa Lohij ds in ij dksbZ
dk;Zjr ,oa fu;qDr ugh gSA fo|ky; ds lkQ
lQkbZ ,oa vko';drk dks n`f"Vxr j[krs gq, Jh
ujflag jkor dks lsok;ksftr fd;k tkuk laLFkk
fgr es gksxkA

vr% vkids vkns'k ds Øe esa Jh
ujflag jkor dks e`rd vkfJr ds vUrxZr lQkbZ
dehZ@ Lohij ds fjDr in ij p;u fd;s tkus
dh laLrqfr dh tkrh gSA**

12. From the letter of the Principal, it
is apparent that there is six posts of ClassIV employees, but no one is working on the
post of Sweeper in the Institution.

13. It is apparent from the counter
affidavit of the State that there was no fault
or delay on the part of the petitioner and
there was a delay on the part of the
department/authorities,
the
petitioner
should not be made to suffer.

14. The Hon'ble Apex Court in
Malaya Nanda Sethy (Supra) has held as
under:-

"7. Thus, from the aforesaid, it
can be seen that there was no fault and/or
delay and/or negligence on the part of the
appellant at all. He was fulfilling all the
conditions
for
appointment
on
compassionate grounds under the 1990
Rules. For no reason, his application was
kept pending and/or no order was passed
on one ground or the other. Therefore,
when there was no fault and/or delay on
the part of the appellant and all through
out there was a delay on the part of the
department/authorities,
the
appellant
should not be made to suffer. Not
appointing the appellant under the 1990
Rules would be giving a premium to the
524 INDIAN LAW REPORTS ALLAHABAD SERIES
delay and/or inaction on the part of the
department/authorities.
There
was
an
absolute callousness on the part of the
department/authorities.
The
facts
are
conspicuous and manifest the grave delay
in entertaining the application submitted by
the appellant in seeking employment which
is
indisputably
attributable
to
the
department/authorities.
In
fact,
the
appellant has been deprived of seeking
compassionate appointment, which he was
otherwise entitled to under the 1990 Rules.
The appellant has become a victim of the
delay and/or inaction on the part of the
department/authorities
which
may
be
deliberate or for reasons best known to the
authorities concerned. Therefore, in the
peculiar facts and circumstances of the
case, keeping the larger question open and
aside, as observed hereinabove, we are of
the opinion that the appellant herein shall
not be denied appointment under the 1990
Rules. The appellant has become a victim
of the delay and/or inaction on the part of
the department/authorities which may be
deliberate or for reasons best known to the
authorities concerned. Therefore, in the
peculiar facts and circumstances of the
case, keeping the larger question open and
aside, as observed hereinabvove, we are of
the opinion that the appellant herein shall
not be denied appointment under the 1990
Rules.

15. The judgment cited on behalf of
the State is not applicable in the present
case as there were a delay on behalf of the
dependents of the deceased employee and
the said judgment are not applicable in the
present case.

16. In view of the above, discussions,
the respondents are directed to consider the
case of the petitioner for appointment on
compassionate ground under the Rules of
1974 as per his application which was
received in the office of District Inspector
of Schools, Ballia on 22.6.2002 and if the
petitioner is otherwise found to eligible to
appoint him on the Class-IV in the
Institution namely Amar Shahid Bhagat
Singh Inter College, Rasra, Ballia, District-
Ballia.

17. The aforesaid exercise should be
completed by the concerned respondents
within period of four weeks from today and
the petitioner is entitled to all the benefits
from the date of his appointment only.

18. In view of the above, writ petition
stands allowed. There shall be no order as
to costs.
----------
(2023) 1 ILRA 524
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 26963 of 2018

Rajesh Kumar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.

Civil Law - Service Jurisprudence - Arrear
of salary - principle of "no work no pay" -
when not applicable - where the employee
remains out of service on account of the
unilateral act of the employer which is
subsequently found not valid and lawful,
the employer cannot deny his salary on
the principle of "no work no pay (Para 15)