JUDGMENT Hon’ble Mahesh Chandra Tripathi, J.—Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. By means of present writ petition, the petitioner has prayed for direction in the nature of mandamus directing the respondents to appoint him as Assistant Clerk in Brijesh Intermediate College, Gulalpur, District Jaunpur. 3. Brief facts giving rise to the present case are that Shri Triloki Nath Sharma-the father of the petitioner was working as Class-IV employee in Brijesh Intermediate College, Gulalpur, District Jaunpur (in short the institution) since 1.7.1957. The institution was duly recognized as Intermediate College under U.P. Intermediate Education Act, 1921 and received grant-in-aid from the State Government. On the retirement of Shri Sita Ram Yadav, Head Clerk of the institution on 30.6.1991, Shri Ram Dularey Yadav was promoted from Assistant Clerk to Head Clerk and due to his promotion, one post of Assistant Clerk fell vacant under 50% promotional quota. There were four sanctioned post of Clerks including Head Clerk in the institution and therefore, two posts were reserved under the promotional quota. The father of the petitioner being senior-most Class-IV employee was entitled to be promoted as Assistant Clerk. The Committee of Management of the institution appointed Shri Prakash Yadav, who is son of Shri Sita Ram Yadav-the retired Head Clerk, by direct recruitment. The District Inspector of Schools granted approval to the appointment of Shri Prakash Yadav on 7.8.1991. The father of the petitioner filed a representation against the appointment of Shri Prakash Yadav. Thereafter, he filed a Writ Petition, which was disposed of on 11.10.1991 with direction to decide the representation. The father of the petitioner was suspended on 4.4.1992. He filed another Writ Petition No. 17432 of 1992, in which an interim order was passed on 19.5.1992 staying the suspension order. The said writ petition was disposed of on 11.11.1997 and despite the clear directions of this Court by its order dated 19.5.1992, he was not paid the salary by the respondents nor any subsistence allowance was paid to him. He filed a representation against the appointment of Shri Prakash Yadav, which was rejected by the respondents by their order dated 7.4.1992. He challenged the order dated 7.4.1992 in Writ Petition No. 1527 of 1993 and during the pendency of the said writ petition, the father of the petitioner expired on 2.5.2001. He filed a representation against the appointment of Shri Prakash Yadav, which was rejected by the respondents by their order dated 7.4.1992. He challenged the order dated 7.4.1992 in Writ Petition No. 1527 of 1993 and during the pendency of the said writ petition, the father of the petitioner expired on 2.5.2001. The petitioner is the eldest son and is fully qualified for being appointed as Assistant Clerk in the institution on compassionate ground. He represented on 24.5.2001 before the District Inspector of Schools for his appointment on compassionate ground. He also represented before the Deputy Director of Education, 5th Region, Varanasi; Director of Education, Allahabad and Additional Director of Education, 5th Division, Varanasi on 24.5.2001. He also intimated to the Principal of the institution on 5.7.2001 and 10.7.2001, that he has no source of income and is fully qualified to be appointed on compassionate ground. He again sent representation to the Principal of the institution on 10.7.2001 and reminders to the District Inspector of Schools on 10.7.2001 and 12.7.2001. When no action was taken up by the respondents for appointing him on compassionate ground, he again reminded the respondents on 10.7.2011 intimating his precarious condition that he is in urgent need of a source of livelihood. 4. Learned counsel for the petitioner submits that the father of the petitioner was continuing in the eyes of law as Assistant Clerk at the time of his death. The petitioner, being the eldest son, is fully qualified to be given compassionate appointment in place of his father. The family of the petitioner is living in extreme poverty. Not a single paisa was paid to the father of the petitioner till his death by the respondents despite the direction of this Court. The family of the petitioner is in dire need of employment so that some money can be earned for the livelihood of the family of the petitioner. No action whatsoever has been taken by the respondents for providing appointment to the petitioner. The respondents are deliberately keeping his representation pending and in a clandestine manner filled up the vacancy by direct recruitment ignoring the claim of the petitioner. The management of the institution is also arbitrarily trying to deny the appointment to the petitioner, and despite his request for his appointment as Assistant Clerk, no action has been taken. The respondents are deliberately keeping his representation pending and in a clandestine manner filled up the vacancy by direct recruitment ignoring the claim of the petitioner. The management of the institution is also arbitrarily trying to deny the appointment to the petitioner, and despite his request for his appointment as Assistant Clerk, no action has been taken. The act of the respondents in not giving the appointment to the petitioner in place of his father is arbitrary. 5. Learned counsel for the petitioner submits that the father of the petitioner was going to retire in the year 2003, but unfortunately he died on 2.5.2001 during the course of service, living behind the petitioner and other family members. There is no delay in making claim before the respondent authority. He has relied upon judgments of this Court in Writ A No. 74086 of 2011 (Narendra Rai v. State of U.P. and others) decided on 9.3.2015 and in Writ A No. 4155 of 2007 (Abhishek Kumar Tripathi v. State of U.P. and others) decided on 16.5.2014 in support of his submission. 6. Learned counsel for the petitioner has also placed reliance on a recent judgment of Hon’ble Supreme Court in Civil Appeal No. 2835 of 2015 (Amarkant Rai v. State of Bihar and others) decided on 13.3.2015. The relevant paragraph Nos. 11 to 17 of the judgment are reproduced hereinafter : “11. As noticed earlier, the case of the appellant was referred to Three Members Committee and Three Members Committee rejected the claim of the appellant declaring that his appointment is not in consonance with the ratio of the decision laid down by this Court in Umadevi’s case (supra). In Umadevi’s case, even though this Court has held that the appointments made against temporary or ad-hoc are not to be regularized, in para 53 of the judgment, it provided that irregular appointment of duly qualified persons in duly sanctioned posts who have worked for 10 years or more can be considered on merits and steps to be taken one time measure to regularize them. In para 53, the Court observed as under : “53. One aspect needs to be clarified. In para 53, the Court observed as under : “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the Courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.” The objective behind the exception carved out in this case was prohibiting regularization of such appointments, appointed persons whose appointments is irregular but not illegal, ensure security of employment of those persons who served the State Government and their instrumentalities for more than ten years. 12. Elaborating upon the principles laid down in Umadevi’s case (supra) and explaining the difference between irregular and illegal appointments in State of Karnataka and others v. M.L. Kesari and others, (2010) 9 SCC 247 , this Court held as under: “7. 12. Elaborating upon the principles laid down in Umadevi’s case (supra) and explaining the difference between irregular and illegal appointments in State of Karnataka and others v. M.L. Kesari and others, (2010) 9 SCC 247 , this Court held as under: “7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (3), if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any Court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” 13. Applying the ratio of Umadevi’s case, this Court in Nihal Singh and others v. State of Punjab and others, (2013) 14 SCC 65, directed the absorption of the Special Police Officers in the services of the State of Punjab holding as under: “35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive Government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive Government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is-the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks.” 14. In our view, the exception carved out in para 53 of Umadevi is applicable to the facts of the present case. There is no material placed on record by the respondents that the appellant has been lacking any qualification or bear any blemish record during his employment for over two decades. It is pertinent to note that services of similarly situated persons on daily wages for regularization viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of Clerk was regularized w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 3.1.2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits be paid from 1.1.2010. 15. The appellant although initially working against unsanctioned post, the appellant was working continuously since 3.1.2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits be paid from 1.1.2010. 15. Considering the facts and circumstances of the case that the appellant has served the University for more than 29 years on the post of Night Guard and that he has served the College on daily wages, in the interest of justice, the authorities are directed to regularize the services of the appellant retrospectively w.e.f. 3.1.2002 (the date on which he rejoined the post as per direction of Registrar). 16. The impugned order of the High Court in LPA No. 1312 of 2012 dated 20.2.2013 is set aside and this appeal is allowed. The authorities are directed to notionally regularize the services of the appellant retrospectively w.e.f. 3.1.2002, or the date on which the post became vacant whichever is later and without monetary benefit for the above period. However, the appellant shall be entitled to monetary benefits from 1.1.2010. The period from 3.1.2002 shall be taken for continuity of service and pensionary benefits. 17. The appeal is allowed in terms of the above. No order as to costs.” 7. Learned Standing Counsel, on the other hand, submitted that the father of the petitioner died after his retirement. The father of the petitioner was not working in the institution and he died after the date of his retirement. Therefore, the petitioner cannot be given the benefit of appointment of dependent of deceased employee under Dying in Harness Rules. The father of the petitioner was not in service since 1992, and the Committee of Management terminated his services. The father of the petitioner died after his retirement and therefore, the petitioner cannot be given the benefit of appointment on compassionate ground. The petitioner is not entitled to get any relief from this Court and the writ petition is liable to be dismissed. 8. Heard rival submissions and perused the record. 9. The father of the petitioner namely Triloki Nath Sharma was initially appointed as Class-IV employee in the institution. Finally his services were duly approved by the District Inspector of Schools, Jaunpur. 8. Heard rival submissions and perused the record. 9. The father of the petitioner namely Triloki Nath Sharma was initially appointed as Class-IV employee in the institution. Finally his services were duly approved by the District Inspector of Schools, Jaunpur. In the year 1991, one post of Assistant Clerk fell vacant under 50% promotional quota. Since the petitioner’s father was senior-most Class-IV employee i.e. Daftari in the institution, then he made an application for promotion and when no response had been made by the institution, he was compelled to approach this Court by means of Writ Petition No. 35102 of 1991, which was disposed of vide judgment and order dated 11.10.1991, with following observations: “The petitioner is IV class employee in Brijesh Intermediate College, Gulalpur, Jaunpur. Petitioner’s contention is that under Chapter-III rule 2 (2) of the Regulations framed under the U.P. Intermediate Education Act, 1921, 50% of the posts of the clerks are required to be filled by promotion from amongst the IV class employees. The petitioner claims that he is seniormost IV class employee in the institution and as such he is entitled to be promoted on the post of clerk. The petitioner’s further contention is that out of four posts, no post has been filled by promotion so far from the IV class employee. In the aforesaid background the petitioner has made a representation to the District Inspector of Schools on 6.7.1991 praying therein that the petitioner should be promoted on the post of the clerk which has fallen vacant and which is required to be filled by promotion. It is appropriate in the circumstances of the present case that the District Inspector of Schools will decide the petitioner’s representation, within four weeks from the date a certified copy of this order is produced before him. It is being made clear that the District Inspector of Schools will not refuse the relief to the petitioner for promotion merely on the ground that the said post has been filled by direct recruitment after filling of the petitioner’s representation dated 6.7.1991 before the District Inspector of Schools. With the aforesaid observations, the writ petition is disposed of.” 10. It is being made clear that the District Inspector of Schools will not refuse the relief to the petitioner for promotion merely on the ground that the said post has been filled by direct recruitment after filling of the petitioner’s representation dated 6.7.1991 before the District Inspector of Schools. With the aforesaid observations, the writ petition is disposed of.” 10. It has been averred in the writ petition that on account of filing of the aforesaid writ petition, the respondents were annoyed and instead of passing any favourable order, they appointed one Shri Prakash Yadav as Assistant Clerk by way of direct recruitment under 50% promotional quota. Again the father of the petitioner approached to the District Inspector of Schools, Jaunpur through an application against the said appointment and also requested for compliance of the order passed by this Court. 11. Learned counsel for the petitioner vehemently submitted that in this background the District Inspector of Schools namely Shri Banke Singh was inimical with the father of the petitioner and placed him under suspension vide order dated 4.4.1992 and meanwhile, approved the alleged direct recruitment on 7.4.1992. In this background the father of the petitioner was again compelled to file two writ petitions. The first Writ Petition No. 1527 of 1992 was filed against the alleged approval dated 7.4.1992, in which an interim order was passed staying the order passed by the District Inspector of Schools dated 7.4.1992 and in the second Writ Petition No. 17432 of 1992 this Court had passed an interim order on 15.4.1992 that “the petitioner Triloki Nath Sharma shall not be deemed to have placed under suspension pursuant to order dated 4.4.1992.” 12. It has also been averred that the order dated 15.4.1992 had been served upon the District Inspector of Schools and finally vide order dated 15.8.1995 the District Inspector of Schools, Jaunpur had passed the detailed order directing for promotion of the petitioner’s father by cancelling the appointment of Shri Prakash Yadav, who was appointed by direct appointment. In the said circumstances, the Writ Petition No. 1527 of 1992 has become infractuous. On 11.11.1997 this Court allowed the second Writ Petition No. 17432 of 1992, which was filed against the suspension, affirming the earlier interim order dated 15.4.1992. 13. In the said circumstances, the Writ Petition No. 1527 of 1992 has become infractuous. On 11.11.1997 this Court allowed the second Writ Petition No. 17432 of 1992, which was filed against the suspension, affirming the earlier interim order dated 15.4.1992. 13. In this background, the father of the petitioner was very much in the service of the institution and eventually died on 2.5.2001 during the course of his service leaving behind the petitioner and other family members. Thereafter the mother of the petitioner moved an application for appointment of the petitioner under Dying in Harness Rules and even the post retiral benefits and salary from 1992 and other benefits i.e. GPF, family pension, and other benefits have not been released by the respondents. While entertaining the writ petition, the Court passed the following interim order on 27.11.2001 : “Heard learned counsel for the petitioner and learned standing counsel representing respondent No. 1 and 3. He prays for and is granted one month’s time to file counter-affidavit. Issue notice to respondent No. 2 returnable within one month. List immediately thereafter. In the meantime, it will be open to the District Inspector of Schools, Jaunpur to pass appropriate order on the application of the petitioner for appointment.” 14. The present writ petition is pending since 2001 and unfortunately the claim of the petitioner has not been redressed by the answering respondents. It is also relevant to note here that even the respondents have not filed any counter-affidavit for substantial longer time and at very belated stage, the counter-affidavit has been filed in the present writ petition on 16.10.2014. While filing the counter-affidavit a plea has been taken by the answering respondents on the basis of certificate issued by the Principal of the institution on 15.4.2003, by which it had been averred that the father of the petitioner was not working in the institution and he died after his retirement. Therefore, no benefits can be given to the dependents of the deceased employee under Dying in Harness Rules. It has also been averred that the father of the petitioner was not in service since 1992. Therefore, the Committee of Management had terminated his services. 15. This Court is surprised to note that the respondents had taken a very casual approach while filing the counter-affidavit. It has also been averred that the father of the petitioner was not in service since 1992. Therefore, the Committee of Management had terminated his services. 15. This Court is surprised to note that the respondents had taken a very casual approach while filing the counter-affidavit. Inspite of various litigations, the father of the petitioner could not get any justice in his life time and the present counter-affidavit has been filed by Shri Girdhari Lal Koli, posted as District Inspector of Schools, Jaunpur in most casual manner, and had refuted the claim of the petitioner. The relevant paras are reproduced herein below : “4. That in reply to the contents of paragraph No. 2 to 6 of the writ petition, it is stated that due to unauthorized absence of late Triloki Nath Sharma, father of petitioner from the Vidyalaya, the Principal of the institution terminated his services. 5. That in reply to the contents of paragraph No. 7 of the writ petition it is stated that Triloki Nath Sharma, father of the petitioner died after his retirement. In this regard, the certificate issued by the Principal of the institution dated 15.4.2003 is being filed herewith as Annexure CA-1 to this affidavit. 6. That in reply to the contents of paragraph No. 8 to 12 of the writ petition it is stated that Triloki Nath Sharma was not working in the Vidyalaya and he died after the date of his retirement, therefore, the petitioner cannot be given the benefit of appointment of dependent of deceased employee under the Dying in Harness Rules. 7. That in reply to the contents of paragraph No. 13 to 20 of the writ petition it is stated that Triloki Nath Sharma, father of the petitioner was not in service since 1992, therefore, the Committee of Management terminated his services. It is relevant to mention here that Triloki Nath Sharma died after his retirement, therefore, the petitioner cannot be given the benefit of appointment of dependent of deceased employee under the Dying in Harness Rules. 8. That the contents of paragraph No. 21 of the writ petition alongwith grounds and reliefs are not admitted. The petitioner is not entitled to get any relief from this Hon’ble Court. 8. That the contents of paragraph No. 21 of the writ petition alongwith grounds and reliefs are not admitted. The petitioner is not entitled to get any relief from this Hon’ble Court. The petitioner has failed to make out any case for interference by this Hon’ble Court under Article 226 of the Constitution of India and the writ petition is liable to be dismissed.” 16. It is apparent from the averments made in the counter-affidavit that even no pain has been taken by the District Inspector of Schools to find out the complete details and credentials of the father of the petitioner, and the complete averment has been made in the counter-affidavit very leisurely on the basis of some certificate issued by the Principal of the institution, which was issued way back in the year 2003 and even he had no time to verify the details with regard to the father of the petitioner. No doubt, at this stage it is hard to accept the claim of the petitioner for compassionate appointment but so far as other benefits are concerned, it was incumbent on the part of the District Inspector of Schools to verify complete records. The averment, which has been made in the counter-affidavit, specially that the father of the petitioner was not working in the institution since the year 1992, cannot be sustained in the aforesaid facts, whereas time to time the father of the petitioner had approached this Court and even interim orders had also been passed in his favour and his suspension was also stayed by this Court. 17. Learned counsel for the petitioner has also produced the original marksheet of High School Examination 1968 of late Triloki Nath Sharma, which clearly indicates that the date of birth of late Triloki Nath Sharma was 1.7.1943. Therefore, the certificate, which has been issued by the Principal of the institution in the year 2003 that late Shri Triloki Nath Sharma had retired, is factually incorrect on the face of record. The certificate issued by the Principal of the institution indicates that the date of birth of father of the petitioner is 6.7.1939, which is factually incorrect. This aspect may also be verified by the District Inspector of Schools, while taking the decision in the matter. 18. The certificate issued by the Principal of the institution indicates that the date of birth of father of the petitioner is 6.7.1939, which is factually incorrect. This aspect may also be verified by the District Inspector of Schools, while taking the decision in the matter. 18. Therefore, at this stage the Court is refrained to issue notice to the District Inspector of Schools but at the same time, caution him not to file any affidavit in such manner without ascertaining the correct facts from the institution concerned. 19. The writ petition is allowed. A writ of mandamus is issued to the respondents to ensure payment, which had not been paid to the father of the petitioner, and which was admissible, in accordance with law and also pay post retiral benefits i.e. GPF, family pension, and other benefits. The process may be completed within a period of two months from the date of production of a certified copy of the order before them. 20. Let the original High School certificate be returned to the petitioner. ———————