Anil Kumar Sharma vs Union Of India & Ors.
2013 Latest Caselaw 4989 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 6855/2013 C.M.No.14858/2013
%                                      Date of decision: 30th October, 2013
       ANIL KUMAR SHARMA                                   ..... Petitioner
                          Through:     Mr.Azhar Qayum & Mr.D.V.Shukla,
                                       Advocates.

                          versus

       UNION OF INDIA & ORS.                            ..... Respondents
                     Through:          Mr.Hashmat Nabi, Advocate for R-1
                                       to R-3.

       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MS. JUSTICE DEEPA SHARMA

       GITA MITTAL, J. (Oral)

1. By way of the instant writ petition, the petitioner seeks issuance of a Writ of Mandamus directing the respondents to appoint him as a Class III employee in the position of Assistant Sub-Inspector or Class II to which he is eligible instead of Class IV employee. The petitioner is the son of Late Sh.B Raj Dayal Rai who was employed with the Border Security Force (BSF) and unfortunately suffered injury which required his discharge on 26th April, 1982 from service of the Force.

2. On attaining age of 18 years, the petitioner applied for compassionate appointment with the Border Security Force on 7th October 1988 which was followed by issuance of several reminders. It is undisputed before us that sometime in August, 2004, the

petitioner was offered a post of Water Carrier on compassionate basis with the BSF which he accepted. After accepting the appointment the petitioner submits that he has been making representations that he was entitled to an appointment in a class III post as against appointment of Class IV, which had been accepted by him. We may note that the petitioner was also seeking retrospective service benefit from 1988 when he had first applied for appointment on compassionate grounds.

3. Inasmuch as the respondents failed to favourably consider the same, the petitioner filed W.P.(C) 6957/2005 in this court which was seeking the above benefits. This writ petition was dismissed by the court vide an order passed on 25th April, 2005, the operative part of which reads as follows:

"In support of his demands it is not shown, at any stage, his entitlement. He also claims that he should have been appointed to Class III post instead of Class IV post.

This petition on the face of it appears to be a charter of demands than an enforcement of any rights suffering from any rules or law which in our view can be accorded consideration by the Competent Authority of BSF.

Petition is dismissed with observations that in case petitioner makes any representation to the Director General of BSFraising any of his legitimate demands, it be considered and decided under law."

4. The issue of entitlement to appointment as a Class III

employee or the other relief noted above stood concluded by the above order.

5. The petitioner thereafter claims to have filed representation to the respondents in purported compliance of the directions by the court. The petitioner even served a legal notice dated 9th May, 2005 reiterating the above demands which stood rejected by the court order. The respondents proceeded to initially decide these representations vide order dated 24 th October, 2007 informing the petitioner as follows:

"2. It is to bring to your notice that your appointment is in the compassionate appointment category being ward of a deceased personnel. As per DOP & T instructions compassionate appointment are made against group 'C' and group 'D' posts only if the individual meets the laid down criteria and possesses requisite qualification for the post.

3. You were considered for the compassionate appointment under this provision but was found unfit medically for appointment as CT (GD). However, DG, BSF considered your case sympathetically being a ward of deceased BSF pers and granted following condonation to appoint you as CL-IV (Enrolled follower) in order to help out your family living in distress due to your father's death.

(a) In age by 10 yrs 03 months 21 days.

4. You were offered the post, which you were at liberty to decline if you think it is below your dignity. Compassionate appointment are made to help out the families in distress of those Govt. Servants who die in harness. There is no other consideration of such appointments.

5. As regards your request for out of turn promotion, it is inform you that out of turn

promotion has been stopped in the Force as per latest Govt. Orders. Moreover you do not have any outstanding merit for such consideration.

6. You are advised to concentrate on your personal job and show excellence in this instead to resorting to this infractuous representations etc."

6. It is noteworthy that the petitioner complained by way of a writ petition bearing no.3403 of 2007 which was filed in the Jharkhand High Court with regard to the failure of the respondents to pass orders on his representations. We are informed that such writ petition is pending even on date.

7. Learned counsel for the respondents submits that the pendency of this writ petition would not in any way impact the present writ petition inasmuch as before the Jharkhand High Court the petitioner has only sought directions for disposal of the representations and in view of the order dated 24 th October,2007, that writ petition has been rendered infructuous.

8. Be that as it may, no grievance at all has been made by the petitioner with regard to the order dated 24 th October, 2007. It is noteworthy that the order has not been passed on any statutory appeal or representation. This court had already noted in the order passed on 25th April, 2005 that the petitioner had no legal right or entitlement to the reliefs sought. These very reliefs are again pressed in the present writ petition. These observations would bind the consideration by this court.

9. In any case, the order passed by the respondents on 24 th October, 2007 has been faulted by the petitioner. The present

writ petition has been filed after the passage of five years thereafter and would be prohibited by delay and laches.

10. It is noteworthy that the respondents have also granted condonation of age by over 10 years to the petitioner while giving compassionate appointment. The petitioner has been given benefit of the welfare scheme without having undergone the selection process which candidates undergoing the regular selection would be required to undergo.

11. For all these reasons, this writ petition is wholly misconceived. We find no merit in the writ petition which is hereby dismissed.

GITA MITTAL, J

DEEPA SHARMA, J OCTOBER 30, 2013 rb