Allahabad High Court
Smt Akhilesh And Another vs Executive Director In Charge Of Hr ... on 13 May, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:85628-DB
Court No. - 40
Case :- SPECIAL APPEAL No. - 478 of 2024
Appellant :- Smt Akhilesh And Another
Respondent :- Executive Director In Charge Of Hr Portfolio Bank Of Baroda And 3 Others
Counsel for Appellant :- Sharad Tandon
Counsel for Respondent :- Anadi Krishna Narayana
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard learned counsel for the appellants, Mrs. Ashok Kumar Lal, learned counsel for the respondent-Bank and perused the record.
2. The instant intra-court Special under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 (hereinafter referred to as the "Rules, 1952) is being preferred by the appellants-petitioners challenging the legality and validity of the judgment and order dated 19.03.2024 passed by the learned Single in WRIT - A No. - 1781 of 2024 (Smt. Akhilesh and another Vs. Executive Director and 3 Others) wherein the appellant-petitioner has challenged the order dated 7.03.2013 whereby the claim of the appellant-petitioner was denied for according compassionate appointment taking note to the fact that family of deceased was having sufficient income source and their monthly family income exceeded 60 per cent of last drawn salary of the deceased. The learned Single while entertaining the instant petition has dismissed the same with an observation that petition was filed with an inordinate delay of about 12 years and no convincing and cogent reason has been given for the same.
3. Before considering the rival arguments advanced by the parties. It is opt to reproduced the order passed by the learned Single Judge in WRIT - A No. - 1781 of 2024.
"1. Heard Sri Shubham Tandon, learned counsel for the petitioners and Sri Ashok Kumar Lal, learned counsel for Respondent Nos. 1,2,3 and 4.
2. On 19.2.2024, learned counsel for the respondent bank was directed to seek specific instructions only on the issue of the calculation of Ex-gratia payment.
3. Pursuant to the aforesaid order, learned counsel for the respondents has produced a chart of computation of monthly family income, which is taken on record.
4. Learned counsel for the petitioner submits that by impugned order dated 7.3.2013, compassionate appointment of petitioner no.2 i.e. son of deceased was rejected on the ground that the family of deceased is having sufficient income source and their monthly family income exceeds 60% of last drawn salary of the deceased and by the impugned order dated 25.4.2023 the representation of the petitioner was also rejected. He next submitted that the husband of petitioner 1 i.e. Raj Kumar Suman was suffering from cancer and due to prolonged treatment, present petition could not be filed in time.
5. Learned counsel for the respondent vehemently opposed the submission of learned counsel for petitioner and submitted that present petition has been filed with inordinate delay of about 12 years and no convincing and cogent reason has been given for the delay. Further, along with petition, no relevant document relating to the cancer treatment of husband of petitioner no.1 has been annexed. He further submitted that in light of judgments of Apex Court in the cases of Punjab State Power Corporation Limited and others vs. Nirval Singh (2019) 6 SCC 774, State of J.K. and others vs. Sajad Ahmed Mir (2006) 5 SCC 766 and Steel Authority of India Vs. Gouri Devi passed in Civil Appeal No. 6910 of 2021, compassionate appointment cannot be granted after inordinate delay. He lastly submitted that under such facts and circumstances, petition is not maintainable and liable to be dismissed on the ground of laches.
6. I have considered the rival submissions of learned counsel for the parties and perused the judgments. The facts so raised by learned counsel for the respondents is not disputed. Undisputedly, petitioner is claiming appointment under Dying in Harness Rules after 12 years from the date of death of husband of petitioner no.1, which cannot be accepted and also filed present petition after inordinate delay of 12 years without any proper explanation, therefore, in light of judgments of Apex Court in the cases of Punjab State Power Corporation Limited, State of J.K. and State of Punjab (supra), no positive order can be issued for appointment of petitioner no.2 on compassionate ground.
7. Accordingly, petition lacks merit and is dismissed."
4. In this background, we have proceeded to examine the record in question. It transpires from the record that the respondent-Bank had rejected the application for compassionate appointment of appellant No.2 (i.e. son of the deceased) vide order dated 7.03.2013 which is challenged in the writ. The application for compassionate appointment was non-suited by the respondent-Bank on the ground that family members of the deceased was having sufficient income source and monthly income exceeded 60 per cent of the last drawn salary of the deceased. Later on the representation dated 25.04.2023 was also rejected.
5. So far as the compassionate employment is concerned, the same is given to mitigate immediate financial hardship to the family of the deceased employee. The law in this regard is well settled.
6. In State of Haryana and Ors. Vs. Rani Devi and Anr (1996) 5 SCC 308 : AIR 1996 SC 2445), it was held that the claim of applicant for appointment on compassionate ground is based on the premise that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 and 16 of the Constitution. However, such claim is considered reasonable as also allowable on the basis of sudden crisis occurring in the family of the employee who had served the State and died while in service. That is why it is necessary for the authorities to frame Rules, Regulations or to issue such administrative instructions which can stand the test of Articles 14 and16 . Appointment on compassionate ground cannot be claimed as a matter or right.
7. In Smt. Sushma Gosain & Ors. V. Union of India & Ors. (1989) 4 SCC 468, it was observed that in claims of appointment on compassionate grounds, there should be no delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress.
8. Hon'ble Apex Court in the case of State of J. & K. vs. Sajad Ahmed Mir, 2006 AIR SCW 3708, has taken the view that compassionate appointment cannot be claimed as matter of right, at the cost of others. Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the setback. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution.
9. Admittedly, the sole bread earner died in the year 2012 and the compassionate claim under the compassionate employment was also non-suited by the respondent-Bank way back in the year 2013 itself. At this belated stage, the delayed claim cannot be revived and in this regard the law is settled by the Hon'ble Apex in C. Jacob V. Director of Geology and Mining and another (2008) 10 SCC 115 wherein the Supreme Court has held that for the purposes of limitation the Court has to see as to when the original cause arose and in any case no fresh cause of action arise on the decision of the representation. Relevant paragraphs 9, 10, 11 and 14 read as under:
"9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to `consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.
10. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.
11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of acknowledgment of a jural relationship' to give rise to a fresh cause of action.
12........
13........
14. We are constrained to refer to the several facets of the issue only to emphasise the need for circumspection and care in issuing directions for "consideration". If the representation on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing "consideration" of such claims."
10. Further on the question of laches, the Supreme Court in AIR 1972 SC 2060, Kamini Kumar Das Chaudhary vs. State of West Bengal and others in Para 11 of the said judgment has held as under:-
"11. We may mention that the Division Bench of Calcutta High Court had, treating the case as one for a mandamus to reinstate the appellant, relied upon the statements in Halsbury's Laws of England, Third Edition, Vol. 11, page 73 article 133 that "except in a case where the delay is accounted for Mandamus will not be granted unless applied for within a reasonable time after the demand and refusal". The Division Bench had also referred to Farris on "Extraordinary Legal Remedies" (page 228), to hold that not only, on an analogy from the Statute of limitation in civil cases, a reasonable period may be indicated for applications for Writs of Mandamus, but relief may be refused on the ground of acquiescence and presumed abandonment of the right to complain inferred from inordinate delay. It rightly observed that laches is a well established ground for refusal to exercise the discretion to issue a Writ."
11. In view of above, the special appeal sans merit and is accordingly dismissed.
Order Date :- 13.5.2024
Sachin
