Kerala High Court
B. Anandan vs Union Of India on 3 April, 2024
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946
WP(C) NO. 2392 OF 2018
PETITIONER:
B. ANANDAN
AGED 24 YEARS
S/O.R.BALACHANDRAN PILLAI(LATE),KRISHNA BHAVAN,
CHUNDAMUGAL, AYOOR P.O.,KOLLAM DISTRICT-691533.
BY ADVS.
SRI.T.C.GOVINDA SWAMY
SRI.M.ALFRED LIONEL WINSTON
SMT.KALA T.GOPI
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE GENERAL MANAGER, SOUTHERN
RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O.,
CHENNAI-600003.
2 THE CHIEF SECURITY COMMISSIONER
RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY,
HEADQUARTERS OFFICE, MOORE MARKET COMPLEX,CHENNAI-
600003.
3 THE DIVISIONAL SECURITY COMMISSIONER
RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY,
TRIVANDRUM DIVISION, THIRUVANANTHAPURAM-695014.
4 THE SENIOR PERSONNEL DIVISIONAL OFFICER
SOUTHERN RAILWAY, TRIVANDRUM DIVISION,
THIRUVANANTHAPURAM-695014.
BY ADVS.
SHRI.T.V.VINU, CGC
SRI.S.CHANDRASENAN, SC, RAILWAYS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 2392 OF 2018
2
"C.R"
JUDGMENT
Is delay in approaching the High Court under Article 226
of the Constitution of India fatal for successfully pursuing the
claim for a compassionate appointment? The answer to the
above question lies in intrinsically analyzing the scheme of
compassionate appointment qua the claim of the petitioner.
2. The petitioner is the son of one Sri.R.Balachandran
Pillai, who was a Constable in Railway Protection Force (RPF). He
died on 25.05.2006. An application for compassionate
appointment was given by his wife nominating their daughter.
The said request was considered and on 11.06.2008, the
daughter Kum.Krishna Balachandran Pillai was offered
compassionate appointment and she was asked to appear for
suitability test. It appears that the daughter of late
R.Balachandran Pillai and Valsala did not accept the said offer.
Later Smt.Valsala on 10.02.2012, by Ext.P12 requested the
authorities to cancel her earlier request and to grant
compassionate appointment to the petitioner, who is her son.
Later, this was reiterated on 08.01.2014. Considering the said
WP(C) NO. 2392 OF 2018
request by Ext.P1 order, the authorities have declined the
request and taken a stand that the petitioner cannot be
considered for compassionate appointment.
3. A counter affidavit has been filed on behalf of
respondents 1 to 4. A preliminary objection is taken with regard
to the maintainability of the present Writ Petition on the ground
that Ext.P1 order is dated 16.08.2016, whereas the Writ Petition
is filed in the year 2018 and, therefore, there is an unexplained
delay. It is also contended in the counter affidavit that the
mother had changed the request for nominating the son instead
of her daughter for compassionate appointment only in the year
2011. According to the respondents, Kum.Krishna Balachandran
Pillai given ample opportunities for appointment which was
never utilized. Reliance has been placed on the judgments of the
Honourable Supreme Court, which govern the field with regard
to the appointment on compassionate grounds. Therefore, it is
prayed that the Writ Petition is liable to be dismissed.
4. I have heard Smt.Kala T.Gopi, learned counsel
appearing for the petitioner, and Sri.T.V.Vinu, the learned
WP(C) NO. 2392 OF 2018
Central Government Counsel.
5. Multiple questions are required to be addressed by
this Court before deciding this lis. The primary question is
whether the delay in filing the writ petition is fatal to the cause
projected by the petitioner. Secondary question is with regard
to the entitlement of the petitioner to claim compassionate
appointment on the death of his father Sri. R.Balachandran
Pillai.
6. Since the issues are interconnected on facts, the
same will be dealt conjointly. The records reveal that the father
of the petitioner died on 25.5.2006. On the death of Late
Sri.R.Balachandran Pillai, the mother of the petitioner sent a
request on 2.11.2006 for compassionate appointment for her
daughter, who was then eligible for claiming compassionate
appointment. Kum.Krishna, daughter of late R.Balachandran
Pillai was offered compassionate appointment. It appears that
daughter of late Sri.R.Balachandran Pillai was not inclined to
take up the appointment. She had however requested the
respondents to give a more suitable posting to her than the one
WP(C) NO. 2392 OF 2018
which was offered in the year 2008.
7. In the meantime, that the mother of the petitioner
decided to cancel the nomination of her daughter and decided to
request the authorities to appoint the petitioner under
compassionate grounds. The request was however turned down
by the authorities on 16.8.2016.
8. The learned counsel for the petitioner submitted that
as per Clause I(x) of Ext.P14 which is the guidelines governing
the appointment on compassionate grounds, the petitioner is
entitled to claim compassionate appointment on attainment of
majority. The clause referred to above specifically provides that
a minor son to be appointed will be attaining majority of age
within a period of five years of the event of death, which is the
basis for appointment on compassionate grounds. Therefore, it
is contented that the application submitted by the petitioner is
in order. The learned counsel for the petitioner further refers to
Clause III of Ext.P14 to contend that the son of the deceased
employee is also a person eligible to be appointed on
compassionate grounds. In so far as the time limit for
WP(C) NO. 2392 OF 2018
compassionate appointment is concerned, the counsel submitted
that the same is government by Clause V of Ext.P14, and the
period can be up to five years from the date of occurrence of the
death and the relaxation can be granted by the General
Manager by following certain conditions. Therefore, according to
the learned counsel for the petitioner, the claim of the petitioner
ought not to have been rejected by the respondents.
9. On an anxious considerations of the pleadings, this
Court cannot ignore the factum of delay in filing the writ
petition. According to the respondents, an unexplained delay of
2 years has occurred from the time of passing of impugned
order till filing of the writ petition. When the issue of limitation
is evaluated, one can find that the provisions of the Limitation
Act is not per se applicable to the writ proceedings since the
same being a constitutional remedy. Although no period of
limitation is prescribed in filing of the writ petition under Article
226 of the Constitution of India, the same cannot be taken as
the normal rule. In certain cases, courts will be called upon to
decide the question of delay depending upon the facts. It is
WP(C) NO. 2392 OF 2018
beyond doubt that remedy under Article 226 is discretionary.
Such discretionary relief could be declined, if it is shown that
there is unexplained delay. In Karnataka Power Corporation
Ltd. Vs K. Thangappan [(2006) 4 SCC 322], the Supreme
Court of India had occasion to consider the similar issue,
wherein it was held that unexplained delay can be a ground to
decline jurisdiction under Article 226. A similar question can up
for consideration before the Apex Court in Nadia Distt.
Primary School Council Vs Sristidhar Biswas [(2007) 12
SCC 779], wherein it was held that delay is a significant factor
in granting relief. The ratio decidendi as could be culled out
from the above decision is that unexplained delay is a factor
decisive for this Court in refusing to exercise of the jurisdiction.
10. Suffice to say, the above decisions can be said to be
only a guiding factor in determining whether this Court should
exercise its discretion in entertaining the writ petition. However,
no hard and fast rule can be laid down in this regard. However,
when one analyses the principles laid down by the Apex Court
and applies the same to the facts of this case, this Court is not
WP(C) NO. 2392 OF 2018
persuaded to exercise its discretion in entertaining this writ
petition since there is admittedly an unexplained delay of 2
years. The unexplained delay when considered against the
touchstone principles governing the compassionate
appointment, certainly proves to be detrimental to the interest
of the petitioner. Hence, this Court is constraint to hold that the
delay in filing the writ petition is not explained and, hence, this
Court is not persuaded to exercise its jurisdiction.
11. Despite the above, even assuming that this Court is
persuaded to investigate the merits of the claim, what would be
the result? The answer lies in assimilating the intrinsic facts
involved. It may be true that the petitioner was not eligible to
claim appointment at the time of death of his father. But, it is
pertinent to note that his mother late Valsala had not chosen to
wait till the petitioner attained majority and claim appointment.
If that was the case, necessarily this Court would have to incline
to accept the contention of the petitioner. Instead of that the
mother of the petitioner first nominated her daughter. It is also
pertinent to note that the mother never decided to cancel the
WP(C) NO. 2392 OF 2018
nomination until 02.06.2011. At the same time, it is interesting
to note that by Ext.P9, the sister of the petitioner never
relinquished her claim for appointment on compassionate
grounds. But, on a contrary, she requested the Chief Security
Commissioner, Railway Protection Force to accommodate her in
a more suitable post rather than the one which was offered.
Read with Exts.P9 and P11 with Ext.P12, I am inclined to take a
view that the petitioner cannot claim appointment on
compassionate grounds, especially when his sister has not
relinquished her claim to compassionate appointment. The
respondents cannot be expected to continuously offer
appointment on compassionate grounds to the legal heirs of a
deceased employee.
12. The Rules of Interpretation of a Scheme for
compassionate appointment is well defined. The very purpose
of compassionate appointment is the immediate amelioration to
the family. Whether the basic principles governing the
compassionate appointment will be contravened if a direction is
issued to the respondents directing them to appoint the
WP(C) NO. 2392 OF 2018
petitioner on compassionate appointment? Answer is in
affirmative. It may be true that when the eligibility of the legal
heirs arose, petitioner not being qualified, the mother of the
petitioner chose to exercise her right under the scheme of
appointment and nominate her daughter for the compassionate
appointment instead of the petitioner. If that be so, an offer
which was made by the respondents being accepted by the
mother by nominating her daughter for appointment and later
the daughter not choosing to accept the said offer, but rather
requesting the authorities to give appointment to her on a more
convenient post, will definitely obliterate the claim of the
petitioner seeking for compassionate appointment. It cannot be
construed that the scheme of compassionate appointment
permits the members of the family to raise repeated claims for
appointment. One must remember that the compassionate
appointment is not a method of appointment and is only
intended to get over the penury caused to the family of
deceased. On facts, it is clear that Shri. Balachandran Pillai
expired in the year 2006. After 18 years, this Court cannot
WP(C) NO. 2392 OF 2018
issue direction to the respondents to appoint the petitioner on
compassionate grounds.
13. In State of Gujarat Vs Aravind Kumar T Tiwari
[(2012) 9 SCC 545] the Hon'ble Supreme Court of India held
that the compassionate appointment is not to be claimed as a
matter of right and is not a method of appointment. It has to be
strictly made in accordance with the rules.
14. In Government of India Vs P Venkatesh [(2019)
15 SCC 613], the Apex Court once again reiterated that writ of
mandamus cannot be issued after 21 years of the death of the
employee. Here, on facts, the death of the employee was in the
year 2006. After 18 years, this Court is not persuaded to issue a
writ of mandamus to the respondents either to consider the
claim of the petitioner or appoint him in a suitable post.
15. Viewed in the above perspective, the respondents
discharged their duty by offering Kum.Krishna, the daughter of
the deceased employee, appointment on compassionate ground.
The non acceptance of the said offer coupled by the reluctance
of the daughter to relinquish the claim gives to irresistible
WP(C) NO. 2392 OF 2018
conclusion that the petitioner is not entitled to succeed in the
writ petition.
16. The learned counsel for the petitioner further refers to
Ext.P3 and contends that her sister has already given a consent
letter for the petitioner to be appointed on a compassionate
ground. I am afraid that I am not in a position to accept the
said contention because it is the petitioner who has represented
in the year 2016 and not his sister directly to the respondents.
It is also not clear when that consent letter was given to the
Chief Security Commissioner. Even assuming that the consent
letter was granted, the same will not entitle the petitioner to
claim compassionate appointment because, the offer for
compassionate appointment was once given on 2008 and at that
point of time, Kum.Krishna Balachandran did not accept the
same and rather went on to represent before the authorities for
a convenient posting in this regard.
In the totality of the circumstances and also considering
the well defined principles governing the manner in which the
compassionate appointment has to be made, I am not inclined
WP(C) NO. 2392 OF 2018
to interfere with Exhibit P1 order. Accordingly, the Writ
Petition is dismissed. No order as to costs.
Sd/-
EASWARAN.S,
JUDGE.
lsn
WP(C) NO. 2392 OF 2018
APPENDIX OF WP(C) 2392/2018
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF LETTER NUMBER
NO.X/P.269/CG. APPT. /TVC ISSUED BY THE
2ND RESPONDENT DATED 16.08.2016
REJECTING THE APPOINTMENT OF THE
PETITIONER ON COMPASSIONATE GROUNDS.
EXHIBIT P2 A TRUE COPY OF COMMUNICATION SENT BY
THE 4TH RESPONDENT TO THE PETITIONER
INDICATING THE FACT BEARING NUMBER
NO.V/Z735/14/2010 DATED 21.09.2016.
EXHIBIT P3 A TRUE COPY OF REQUEST DATED 01.07.2016
SUBMITTED BY THE PETITIONER TO THE 2ND
RESPONDENT THROUGH THE 3RD RESPONDENT.
EXHIBIT P4 A TRUE COPY OF REQUEST DATED 2.11.2006,
SUBMITTED TO THE 2ND RESPONDENT THROUGH
THE 3RD RESPONDENT BY THE PETITIONER'S
MOTHER.
EXHIBIT P5 A TRUE COPY OF REQUEST DATED 2.11.2006,
SUBMITTED TO THE 2ND RESPONDENT THROUGH
THE 3RD RESPONDENT BY THE PETITIONER'S
SISTER.
EXHIBIT P6 A TRUE COPY OF COMMUNICATION BEARING
NUMBER NO.X/P.269/CA/RPF DATED
03.10.2008 SENT BY THE 2ND RESPONDENT
TO THE PETITIONER'S SISTER.
EXHIBIT P7 A TRUE COPY OF REPLY DATED 01.11.2008
BY THE PETITIONER'S SISTER TO THE
COMMUNICATION DATED 03.10.2008 SENT TO
THE 2ND RESPONDENT.
EXHIBIT P8 A TRUE COPY OF COMMUNICATION BEARING
NO.X/P/269/CA/RPF DATED 04.12.2008 FROM
2ND RESPONDENT RECEIVED BY THE
PETITIONER'S SISTER INDICATING THE
VENUE, DATE AND TIME FOR PET AND
WRITTEN TEST FOR THE SELECTION FOR THE
POST OF CONSTABLE IN RPF.
WP(C) NO. 2392 OF 2018
EXHIBIT P9 A TRUE COPY OF REPLY TO THE 2ND
RESPONDENT DATED 05.01.2009.
EXHIBIT P10 A TRUE COPY OF COMMUNICATION BEARING
NO.V/CS/CGA/VOL.II DATED 13.08.2010
FROM THE 4TH RESPONDENT.
EXHIBIT P11 A TRUE COPY OF COMMUNICATION BEARING
NO.V/Z735/GR. C/2011/1 DATED 29.04.2011
FROM THE 4TH RESPONDENT.
EXHIBIT P12 A TRUE COPY OF THE REMAINDER DATED
10.02.2012 SENT BY PETITIONER'S MOTHER.
EXHIBIT P13 A TRUE COPY OF REMAINDER DATED
08.01.2014 SENT BY PETITIONER'S MOTHER.
EXHIBIT P14 A TRUE COPY OF MASTER CIRCULAR BEARING
NO.16 DATED 12.12.1990 (SCHEME
REGARDING COMPASSIONATE APPOINTMENT).
RESPONDENT EXHIBITS
Exhibit R1(a) A true copy of the Letter dated
11.06.2008 issued by the 3rd respondent
Exhibit R1(b) A true copy of the Letter dated
18.02.2009 issued by the 3rd respondent
TRUE COPY
P.A TO JUDGE
LSN
