JUDGMENT : Ajit Kumar, J. 1. Heard Ms. Jahnavi Singh, learned counsel for the petitioners and Sri P. K. Srivastava, learned Additional Chief Standing Counsel representing the State respondents. 2. Petitioners before this Court are sons of late Raja Ram and Sahib Singh respectively, who were claimed to be permanent employees working in the establishment of Public Works Department at Firozabad where they died in harness. 3. It is on account of these sole bread earners of the family dying in harness that petitioners moved applications before the concerned competent respondent seeking compassionate appointment. Initially nothing progressed in the matter of their applications for compassionate appointment, so they jointly approached this Court vide Writ - A No.- 9253 of 2018, which stood disposed of holding the petitioners' fathers to be confirmed employee of the respondent establishment and hence petitioners' claims were held liable to be considered for compassionate appointment and accordingly, directions were issued to the petitioners to file representation along with the certified copy of this order and the Executive Engineer, Construction Division, Firozabad was directed to take decision thereupon. The relevant extract of the order of the Court dated 25th May, 2018 is reproduced hereunder: “With reference to the judgment of the Division Bench of this court in State of U.P. and others vs. Kuldeep Thakur reported in 2017 (35) LCD 696 , it is demonstrated by the learned counsel for the petitioners that the claim for appointment on compassionate ground of the dependents of the work charge employee to whom benefit of regularization had been extended after their death, can be considered. In the light of the fact that the regular appointment was made in pursuance of the request made by the employees concerned and on the date of their death, the claims were pending consideration, it was held by the Division Bench that on an account of unfortunate circumstance of death of an employee, his claim for regularization does not get eclipsed nor it could be said to have abandoned. In rebuttal, learned Standing Counsel only submits that the claim of the petitioners are delayed inasmuch their fathers had died in the year 2009 and 2010. In rebuttal, learned Standing Counsel only submits that the claim of the petitioners are delayed inasmuch their fathers had died in the year 2009 and 2010. It is contended that even if, it is accepted for a moment that the claim of the petitioners were materialized after regularization of their father, the regularization order being of the year 2012, after a period of six years, it is not open for the petitioners to seek appointment on compassionate ground as they are able to meet financial crisis on account of death of their father. Considering the submissions of learned counsel for the parties and perused the record, it is more than apparent that the petitioners were repeatedly placing their claim for grant of compassionate appointment since after death of their father and till date, it has not been decided on the ground that their fathers were work charge employees, as such, the petitioners have no claim for consideration for grant of compassionate appointment. The claim of the petitioner, thus, has not been addressed by the respondent on merits. In view thereof, this Court does not find any force in the submission of learned Standing Counsel that the claim of the petitioners would stand frustrated on account of delay. For the above noted facts, this Court is of the considered view that the respondent no. 4 is required to give consideration to the claims of the petitioners and take a decision after appreciation of the material brought before him. In view thereof, the present writ petition is being disposed of with the directions as follows:- (1) Both the petitioners shall file fresh representations alongwith certified copy of this order within a period of one week from today. (2) In case, such representations are filed, the respondent no. 4, the Executive Engineer, Construction Division/P.M.G.S.Y., P.W.D., Firozabad would be under obligation to take an expeditious decision, preferably, within a period of two months form the date of submission of the representation, with respect of each of the petitioner, separately.” 4. Upon representation being made by the petitioners, Executive Engineer, Construction Division, PWD, Firozabad held that since the father of petitioner No.- 1 died on 17th July, 2009 and father of the petitioner No.- 2 died on 12th January, 2010 prior to their regularization in service, therefore, petitioners were not entitled to be considered for compassionate appointment. 5. Upon representation being made by the petitioners, Executive Engineer, Construction Division, PWD, Firozabad held that since the father of petitioner No.- 1 died on 17th July, 2009 and father of the petitioner No.- 2 died on 12th January, 2010 prior to their regularization in service, therefore, petitioners were not entitled to be considered for compassionate appointment. 5. A reliance had been placed upon Rule 5 of the Uttar Pradesh Recruitment of Dependents of Government Servant (Dying-in- Harness) Rules, 1974 and rejected their claims. The relevant part as contained in the order vide its paragraph 20 is reproduced hereunder: 6. The petitioners again jointly challenged this order by means of a writ petition being Writ - A No.- 6743 of 2019 before this Court. This Court this time also referred to relevant Rule 2, namely Definition clause of Uttar Pradesh Recruitment of Dependents of Government Servant (Dying-in-Harness) Rules, 1974 and held that petitioners' case stood covered under the definition of the employees working in regular vacancies may be on adhoc basis or temporary basis and more so, when the petitioners father came to be regularized, respondents action was not justified. The entire order passed by this Court in Writ - A No.- 6743 of 2019 is reproduced hereunder: “Heard learned counsel for the parties. Petitioners, by the instant petition, are assailing the order dated 4 July 2018 passed by the fourth respondent, Executive Engineer, Construction Division/P.M.G.S.Y. P.W.D. Firozabad, rejecting the representation of the petitioners for compassionate appointment pursuant to a direction passed on 25 May 2018 in Writ-A 9253 of 2018 on the ground that the ex-employees were never appointed on the regular establishment of the department. It is urged that petitioner no. 1 is the son of ex-employee Rajaram who was appointed as daily wage employee in 1989, thereafter, in 1999 was engaged as a work charge employee and on 1 July 2006 came to be regularized on the regular establishment of the department. Similarly, the second petitioner is the son of ex-employee Sahib Singh who came to be regularized on 26.04.2012. In the backdrop of the aforementioned admitted facts, it is urged that the term 'Government Servant' under the Uttar Pradesh Recruitment of Dependants of Government Servant (Dying-in- Harness) Rules, 1974 (for short 'Rules, 1974') is defined as under: "2. Similarly, the second petitioner is the son of ex-employee Sahib Singh who came to be regularized on 26.04.2012. In the backdrop of the aforementioned admitted facts, it is urged that the term 'Government Servant' under the Uttar Pradesh Recruitment of Dependants of Government Servant (Dying-in- Harness) Rules, 1974 (for short 'Rules, 1974') is defined as under: "2. Definitions.- In these rules, unless the context otherwise requires,- (a) "Government servant"means a Government servant employed in connection with the affairs of Uttar Pradesh who- (i) was permanent in such employment; or (ii) though temporary had been regularly appointed in such employment; or (iii) though not regularly appointed, had put in three years' continuous service in regular vacancy in such employment." It is evident from sub-rule (iii) that an employee who has not been irregularly appointed and has worked for three years, the dependants of such employee are entitled to be considered for compassionate appointment. It is not in dispute that the ex-employee came to be regularized and died-in-harness. In the circumstances, the impugned order becomes unsustainable and is liable to be quashed. Accordingly, the impugned order dated 4 July 2018 passed by the fourth respondent, Executive Engineer, Construction Division/P.M.G.S.Y. P.W.D. Firozabad, is set aside and quashed. The fourth respondent shall pass fresh order on merits and not on laches. It is urged by learned counsel for the petitioner that the a lot of similarly situated persons have been given appointment by the department without raising any such objection. The writ petition is, accordingly, allowed.” 7. Since the Court had directed for a decision afresh on merits and not on the ground of latches, petitioners again represented the matter before the competent authority and this time again Executive Engineer rejected the claim of the petitioners holding that petitioners' father were not regularized as the orders passed in their favour for regularization were wrong ones. 8. Thus, Executive Engineer proceeded a step ahead to hold regularization of the petitioners’ fathers to be bad as there were no rules for regularization and, thus, petitioners could not have set up their claim for compassionate appointment. Petitioners' father were held to be only work charge employee and in view of the Government order dated 29th January, 2003 compassionate appointment rule has been made inapplicable to the employees of the work charge establishment, the claim deserved to be rejected. Petitioners' father were held to be only work charge employee and in view of the Government order dated 29th January, 2003 compassionate appointment rule has been made inapplicable to the employees of the work charge establishment, the claim deserved to be rejected. It was also held that those who had passed the regularization order illegally, have been proceeded with the disciplinary proceedings and have issued chargesheet. Thus, in a nutshell, the stand taken is that since regularization of the petitioners' father was illegal and bad they would be taken to continue as work charge establishment and since compassionate appointment rule is not applicable to the work charge employees, claim of the petitioners deserved to be rejected. This order passed by the Executive Engineer, Construction Division, P.W.D., Firozabad is in the teeth of the order passed by a coordinate Bench of this Court dated 25th May, 2018 in Writ - A No.- 9253 of 2018 and the order dated 30th April, 2019 passed in Writ - A No.- 6743 of 2019 (produced herein above) whereunder the Court had held very categorically that petitioners' father since were regularized and there was no contest as to the regularization, their fathers became permanent member of the service and so the petitioners' claim was liable to be considered for compassionate appointment. 9. Interestingly, meeting the point of irregular appointment against regular vacancies as was held by this Court under its order dated 30th April, 2019 in Writ - A No.- 6743 of 2019 the authority under the order impugned proceeded to hold firstly that petitioners' fathers were only work charge employee and since Government order of the year 2003 made the compassionate appointment rule inapplicable to the work charge establishment, their claim deserved to be rejected. 10. 10. This order impugned is a glaring case where the authority tried to sit as an appellate authority over and above findings returned by the two coordinate Benches of this Court and I am justifying in saying so for the reason firstly, when the writ petition being Writ - A No.- 9253 of 2018 was contested no such point was raised before the Court that regularization was bad and and the orders were forged one and still further when the claim of the petitioners came to be rejected first time vide order dated 4th July, 2018 the only stand taken was that application was ought to have been filed within a period of five years of death and on the point of regularization permission has been granted to file writ petition in respect of the order passed on 7th February, 2017 in Writ - A No.- 4253(SS)/ 2014; and secondly, the regularization order that has been brought on record of this petition dated 26th April, 2012 in respect of late Raja Ram and late Sahib Singh as Annexure - 2 and 3 respectively have not been disputed. It is worth noticing here the pleadings raised in paragraph 10 and 11 of the writ petition that are reproduced hereunder: “10. That the father of the petitioner No.1 Late Sri Raja Ram has been appointed in daily wages on 26.10.1989 and continued up to 01.07.1999 on the post of work charge and further regularized on 18.04.2006 in pay scale of Rs.2550-3200 and grade pay Rs. 5200- 20200 w.e.f. 01.01.2006 in accordance with vacant post in District Seniority List on account of the death of the grandfather, Sri Charan Singh, s/o Sri Ram Singh. The photo copy of the office order of regular appointment dated 26.4.2012 of the father of the petitioner No. 1 is here being filed and marked as Annexure No. 2 to this writ petition. 11. That the father of the petitioner No.- 2 Late Sri Sahib Singh had been appointed on the post of Beldar on 24.05.2008 in grade pay of Rs.2550-3200 and grade pay of Rs.5200-20200 w.e.f. 01.01.2006 in accordance with vacant of post in District Seniority List on account of the death of his grandfather Lakhan Singh s/o Sri Ved Ram on 23.05.2008. That the father of the petitioner No.- 2 Late Sri Sahib Singh had been appointed on the post of Beldar on 24.05.2008 in grade pay of Rs.2550-3200 and grade pay of Rs.5200-20200 w.e.f. 01.01.2006 in accordance with vacant of post in District Seniority List on account of the death of his grandfather Lakhan Singh s/o Sri Ved Ram on 23.05.2008. The true copy of regular office dated 26.4.2012 related to regular appointment dated 24.5.2008 is here being filed and marked as Annexure No. 3 to this writ petition.” 11. In the counter affidavit that has been sworn by the Sanjeev Kumar the then Assistant Engineer, Construction Division, P.W.D., Firozabad, vide paragraph 18 has given a composite reply to paragraph 10 to 15 of the writ petition is as under: “18. That, the contents of paragraph- 10 to 15 of the writ petition need no comment, being matter of record. Some reply has already been given in foregoing paragraphs. It is further submitted that the case of the petitioners is not squarely covered with the cases mentioned in paragraph 14 of the writ petition, as the facts and circumstances of all above mentioned cases are different from the facts and circumstances of the case of the petitioners. In the above- mentioned cases, which have been relied upon by the petitioners, the petitioners therein were regular employees of the concerned departments, whereas in the case of the petitioners their fathers were neither regularly appointed nor any appointment letters were issued in their favour.” 12. Thus from the perusal of the aforesaid stand taken in paragraph 18 of the counter affidavit it becomes clear that there has never been any dispute in respect of the regularization of the petitioners' father in the respondent establishment may be it is posthumously passed. 13. In paragraph 19 and 20 of the writ petition it is pleaded specifically that father of petitioner No.-1, namely, late Raja Ram was engaged first time on 26th October, 1989 on account of death of Charan Singh, Beldar and with effect from 1st July, 1999 he continued as work charge employee and thereafter he was regularized. Likewise father of petitioner No.- 2, late Sahib Singh was engaged for the first time on 15th July, 1987 on account of death of Lakhan Singh, Beldar and continued as work charge employee till 1st July, 1999 but later on he came to be regularized. Likewise father of petitioner No.- 2, late Sahib Singh was engaged for the first time on 15th July, 1987 on account of death of Lakhan Singh, Beldar and continued as work charge employee till 1st July, 1999 but later on he came to be regularized. Thus, father of petitioners worked for more than 20 years and above respectively. 14. Interestingly, while paragraph 19 has been replied by stating that petitioners' father were never regularized as their names were at serial Nos. 65 and 67 whereas regularization was done only up to the serial No. 42 but no reply has been given of paragraph 20 of the writ petition. 15. Thus, it is clear that concerned respondent having not disputed the regularization order by terming them to be forged and fraudulent one as reply in the counter affidavit is absolutely silent on that count, the said respondent was not justified in holding that petitioners' father were never regularized more especially in the circumstances, where two coordinate Benches of this Court had already held that regularization of the petitioners' fathers was not in dispute. 16. I have further noticed that even while terming the order of regularization in respect of late fathers of the petitioners to be illegal, no order was passed at any point of time recalling those two orders of regularization. 17. There is nothing in the counter affidavit from which it can be inferred that respondent establishment ever tried to file any review petition in respect of the order of two coordinate Benches of this Court in favour of the petitioners. 18. Thus, in my considered view that the manner in which the order has been passed by the Executive Engineer it shows to be an act of mala fide and findings are vitiated for malice in law for the reason that instead of filing review petition to get the findings returned by two coordinate Benches of this Court reviewed or filing any appeal against those judgments to get findings reverred, the authority himself proceeded to reverse the findings on its own. The judgment pronounced by a competent court of law cannot be overruled by any executive fiat whatsoever and this attempt of the concerned executive engineer shows to be an act of misconduct absolutely. 19. The judgment pronounced by a competent court of law cannot be overruled by any executive fiat whatsoever and this attempt of the concerned executive engineer shows to be an act of misconduct absolutely. 19. Here it is also worth pertinent to mention an undisputed fact that one Hariom s/o late Rajveer Singh, Ram Pravesh s/o late Raghubeer Singh and Pradeep Kumar s/o late Hori Lal who were dependents and had been offered compassionate appointment by respondent No.- 4 vide letters dated 19 th November, 2012, 11 th March, 2013 and 19 th November, 2012 respectively. These orders have been brought on records. These dependents have also been given joining. Pleadings to this effect have been taken in paragraphs 23 and 24 of the writ petition. 20. Further vide paragraph 25 of the petition it is stated that fathers of these very appointees, namely Ram Pravesh, Pradeep Kumar and Hari Om, namely late Rajveer Singh, late Raghubeer Singh and late Hori Lal had also died much before the decision was taken in writing to regularize their services by selection Committee on 10 th April, 2012. 21. Thus a plea has been taken vide paragraph 27 of the petition that petitioner has stood discriminated against. The relevant paragraphs 23 to 27 of the writ petition has been reproduced hereunder: “23. That the dependants namely Hari Om s/o Late Rajveern Singh, Ram Pravesh s/o Late Raghubeer Singh and Pradeep Kumar s/o Late Hori Lal had already been given appointment by the Respondent No. 4 on 19.11.2012 through the Letter Nos. 1842/6E dated 19.11.2012, 305/6E dated 11.3.2013, and 1843/6E dated 19.11.2012. True copies of the said Appointment Letters are being filed as Annexure No. 8 to this writ petition. 24. That Ram Pravesh, Pradeep Kumar and Hari Om had given their joining report on 11.3.2013. True copy of the joining report dated 11.3.2013 is being filed herewith as Annexure No. 9 to this writ petition. 25. That the above dependants of the deceased are in the identical footing with the Petitioners because their fathers had also died much before the written decision about the regularization in Selection Committee meeting dated 10.4.2012. 26. That the Respondent No.- 4 himself gave appointment to the dependants of Late Rajveer Singh, Late Raghubeer Singh and Late Hori Lal without any court order; while other dependants seeking compassionate appointment, viz. 26. That the Respondent No.- 4 himself gave appointment to the dependants of Late Rajveer Singh, Late Raghubeer Singh and Late Hori Lal without any court order; while other dependants seeking compassionate appointment, viz. the dependants of Late Subhash Chandra, Late Pancham Singh, and Late Ram Singh, had been given appointment after the Hon’ble High Court’s order. 27. That in the amended seniority list dated 26.4.2012, six dependants have been given compassionate appointment out of nine among whom the petitioners are making their claim for compassionate appointment for which they are legally entitled; and also that hence the petitioners are being discriminated by the Respondent No. 4 by not clearing their claim for compassionate appointment till date; while the Petitioners are bgeing compelled to run pillar to post since last several years in the hope of their compassionate appointment by the Respondent No. 4 concerned themselves.” 22. In the counter affidavit these paragraphs have come to be replied vide paragraph 21 of the counter affidavit in which following averments have been made: “21. That, the contents of paragraph – 21 to 31 of the writ petition need no comment, being matter of record.” 23. Thus, there is no denial to a fact that in identical set of facts those three daily wage employees namely, Rajveer Singh, Raghubeer Singh and Hori Lal, who were regularized after their death in the establishment of the respondent, their dependents had been offered compassionate appointment whereas in the case of petitioner a plea has been taken that the employees having died prior to their regularization, the regularization order was bad and therefore, petitioners could not be offered compassionate appointment. 24. In view of the above pleadings discussed as above and the judgments of two coordinate Benches of this Court in the matter of claim of the petitioner for compassionate appointment, I find the order passed by the authority to be not only arbitrary and discriminatory but also quite contemptable in nature make for the reason that even after twice findings returned by the court that petitioners’ father were regular employees of the respondent establishment, the concerned respondent authority has proceeded to hold that petitioners’ father regularization was bad and they would not be treated as regularized. In my considered view it was not open as I have already held above, for the respondents to take such a stand, except in the circumstances if they had filed any review of the judgment or had preferred an intra-court appeal against the findings returned by the two coordinate Bench. 25. This is a case where the petitioners have been twice forced to litigate before this Court. While initially they approached this Court for non action on the part of the respondents as they did not consider the pending applications of the petitioners for compassionate appointment but the second time and now third time petitioners have been definitely forced to litigate the matter before this Court for no justifiable reasons. 26. The petitioners who are dependents of the deceased daily wage employees, who were regularized later on only and thus naturally family had no source of income as one can very easily understand what wages are given to the daily wage workers. One can understand that since daily wage workers are not paid full wages at par with regularized employees, there is no regular source of income, and in these circumstances, therefore, forcing such employees’ dependents to approach the Court again and again by passing orders in an arbitrary and discriminatory manner renders act and conduct of the authorities bad for malice and, therefore, respondents are liable to be visited with exemplary cost. "47 . Under Chapter XXI, Rule 11 of the Allahabad High Court Rules, 1952, there is an ample provision for award of cost. The provision runs as under:- “ 11. Costs . - In disposing of an application under this Chapter the Court may make such order as to costs as it may consider just.” 48 . In order to do justice, therefore, rules (supra) provide for the imposition of the cost while disposing of the matter, as may be considered just and proper by the Court. Costs . - In disposing of an application under this Chapter the Court may make such order as to costs as it may consider just.” 48 . In order to do justice, therefore, rules (supra) provide for the imposition of the cost while disposing of the matter, as may be considered just and proper by the Court. While in the case of Nagar Panchayat Kithore, District Meerut v. Presiding Authority, Labour Court, U.P., Meerut and another, (2007) 1 SAC 567 , the Court held that imposition of exemplary costs taking into account of the circumstances of the case as justified, Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353 has held that “so far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to the rule in force”. 49 . Apart from above, in a catena of the decisions, Supreme Court has held that the Court can award exemplary costs to the litigants who have approached the Court for commission and omission of State authorities. While no litigants can derive any benefit on account of pendency while protection of interim order has been there, the litigants can also not be prejudiced for non- consideration of their case for a service benefit, which is otherwise guaranteed to them as condition of service under the rules, just for wrongful action or inaction on the part of respondent authorities. 50. In the case of RamRameshwari Devi and others v. Nirmala Devi and others, (2011) 8 SCC 249 , the Court observed that “in order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately, wasted in a large number of uncalled for cases”.” 27. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately, wasted in a large number of uncalled for cases”.” 27. In view of the above, the writ petition succeeds and is allowed with a cost of Rs.50,000/- to be paid by the respondent No.- 4, failing which the same shall be recovered. However, it may be recovered from the erring official of the State by fastening him with liability, in accordance with law. The order dated 4 th July, 2017 and 11 th July, 2019/ 30 th April, 2019 are accordingly hereby quashed. 28. A writ of mandamus is issued to the respondent No.- 4 to offer suitable appointment to the petitioner on compassionate basis within a period of 30 days from the date of production of certified copy of this order. Order Date :- 15.4.2025 Atmesh 16 of 16 Digitally signed by :- ATMESH KESARI High Court of Judicature at Allahabad