Madhya Pradesh High Court
Santosh Kumar Jangela vs The State Of Madhya Pradesh on 13 June, 2023
Author: Gurpal Singh Ahluwalia
1
WP No.9299/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 13th OF JUNE, 2023
WRIT PETITION No. 9299 of 2023
BETWEEN:-
SANTOSH KUMAR JANGELA S/O LATE SHRI
KANHAIYA LAL JANGELA, AGED ABOUT 25 YEARS,
OCCUPATION: LABOUR R/O VILLAGE GUNDA
ANJANJIYA POST MADHPURI DISTRICT MANDLA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI VIDYA PRASAD - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH ITS
SECRETARY SCHOOL EDUCATION DEPARTMENT
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
2. COLLECTOR, MANDLA DISTRICT MANDLA
(MADHYA PRADESH)
3. DISTRICT EDUCATION OFFICER, MANDLA
DISTRICT MANDLA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI LALIT JOGLEKAR - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, the court passed the
following:
2
WP No.9299/2023
ORDER
This petition under Article 226 of the Constitution of India has
been filed against the order dated 21.02.2023 passed by District
Education Officer, Mandla in File No./Vidhi/2013/478 by which the
prayer for grant of appointment on compassionate ground has been
rejected.
2. The facts necessary for disposal of the present petition in short are
that the father of the petitioner was working as an Assistant Teacher. He
died in harness on 16.12.1999 leaving behind his family members, who
were dependent on the income of late Kanhaiyalal. It is the case of the
petitioner that at the time of death of his father he was minor and was
not eligible to apply for appointment on compassionate ground. As soon
as he attained majority, he applied for appointment on compassionate
ground by making an application on 15.10.2007. Late Kanhaiyalal was
survived by his wife, two daughters and the petitioner. The mother of
the petitioner also died on 12.05.2000 and the sisters of the petitioner
got married thereafter.
3. It is submitted by the counsel for the petitioner that when the
respondents did not take any action on the application filed by the
petitioner, then he approached this Court by filing W.P. No.209/2008(s)
for early disposal of his application. Accordingly, the said writ petition
was disposed of by order dated 18.03.2010 and the respondents were
directed to expeditiously consider the application. It is submitted that
although the impugned order is shown to have been passed on
21.02.2013 but the same was not communicated and accordingly, the
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petitioner filed a Contempt Petition No.842/2023 which was withdrawn
by order dated 12.04.2023 with liberty to file fresh writ petition. It is
submitted that the claim of the petitioner has been rejected on the
ground that the application for grant of appointment on compassionate
ground was moved after 7 years of death of his father. It is submitted
that the said reason is contrary to Clause 3.2 of policy dated 29.09.2014.
4. Per contra, the petition is vehemently opposed by the counsel for
the State. It is submitted that the father of the petitioner died on
16.12.1999. According to the petitioner, his date of birth is 13.04.1989,
therefore, it is clear that he attained majority in the year 2007. It appears
that on 15.10.2007 he filed an application for grant of appointment on
compassionate ground which was decided by order dated 21.02.2013.
The present petition has been filed after 10 years of the said impugned
order. If the petitioner can survive for such a long time, then it is clear
that he is not in need of appointment on compassionate ground.
Furthermore, there is nothing on record as to why the mother or the
sisters of the petitioner did not apply for grant of appointment on
compassionate ground.
5. Heard the learned counsel for the petitioner.
6. The Supreme Court in the case of Indian Bank v. Promila,
reported in (2020) 2 SCC 729 has held as under:
18. The question of applicability of any subsequent
Scheme really does not apply in view of the judgment
of this Court in Canara Bank. Thus, it would not be
appropriate to examine the case of the respondents in
the context of subsequent Schemes, but only in the
context of the Scheme of 4-4-1979, the terms of which
continued to be applicable even as per the new Scheme
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of 5-11-1985 i.e. the Scheme applicable to the
respondents. There is no provision in this Scheme for
any ex gratia payment. The option of compassionate
appointment was available only if the full amount of
gratuity was not taken, something which was done.
Thus, having taken the full amount of gratuity, the
option of compassionate appointment really was not
available to the respondents.
7. The Supreme Court in the case of Secretary to Govt. Deptt. Of
Education (Primary) Vs. Bheemesh reported in 2021 SCC Online
1264 has held as under :
12. But we do not consider it necessary to do so. It is no
doubt true that there are, as contended by the learned senior
Counsel for the respondent, two lines of decisions rendered
by Benches of equal strength. But the apparent conflict
between those two lines of decisions, was on account of the
difference between an amendment by which an existing
benefit was withdrawn or diluted and an amendment by
which the existing benefit was enhanced. The interpretation
adopted by this Court varied depending upon the nature of
the amendment. This can be seen by presenting the decisions
referred to by the learned senior counsel for the respondent
in a tabular column as follows:
Citation Scheme in force Modified Decision of this
on the date of Scheme which Court
death of the came into force
Government after death
servant
State Bank of The Scheme of The 1996 Rejecting the
India v. Jaspal the year 1996, Scheme was claim of the
Kaur (2007) 9 which made the subsequently wife of the
SCC 571 [a two financial modified by deceased
member Bench] condition of the policy issued in employee, this
family as the 2005, which Court held that
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main criterion, laid down few the application
was in force, on parameters for of the
the date of death determining dependant made
of the employee penury. One of in the year
in the year 1999. the parameters 2000, after the
was to see if the death of the
income of the employee in the
family had been year 1999,
reduced to less cannot be
than 60% of the decided on the
salary drawn by basis of a
the employee at Scheme which
the time of came into force
death. in the year
Therefore, the 2005.
wife of the
deceased
employee
claimed the
consideration of
the application
on the basis of
parameters laid
down in the
policy of the
year 2005.
State Bank of The employee But with effect This Court held
India v. Raj died on from that the
Kumar (2010) 11 1.10.2004 and 04.08.2005 a application
SCC 661 [a two the applications new Scheme for could be
member Bench] for payment of considered only
compassionate exgratia lump- under the new
appointment sum was Scheme, as it
were made on introduced in contained a
6.06.2005 and the place of the specific
14.06.2005. On old Scheme. provision
the date of death The new relating to
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and on the date Scheme pending
of the contained a applications.
applications, a provision to the
Scheme known effect that all
as compassionate applications
appointment pending under
Scheme was in the old Scheme
force. will be dealt
with only in
accordance with
the new
Scheme.
MGB Gramin The employee However, a new This Court took
Bank v. Chakraw died on Scheme dated the view that
arti Singh (2014) 19.04.2006 and 12.06.2006 the new Scheme
13 SCC 583 [a the application came into force alone would
two member for appointment on 6.10.2006, apply as it
Bench] made on providing only contained a
12.05.2006. A for ex gratia specific
scheme for payment instead provision which
appointment on of mandated all
compassionate compassionate pending
grounds was in appointment. applications to
force on that be considered
date. under the new
Scheme.
Canara The employee The 1993 This Court
Bank v. M. died on Scheme was dismissed the
Mahesh 10.10.1998 and substituted by a appeals filed by
Kumar (2015) 7 the application Scheme for the Bank on
SCC 412 [a two for appointment payment of ex account of two
member Bench] on gratia in the important
compassionate year 2005. But distinguishing
grounds, was by the time the features,
made under the 2005 Scheme namely, (i) that
Scheme of the was issued, the the application
year 1993. It was claimant had for appointment
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rejected on already on
30.06.1999. The approached the compassionate
1993 Scheme High Court of grounds was
was known as Kerala by way rejected in the
"Dying in of writ petition year 1999 and
Harness and succeeded the rejection
Scheme." before the order was set
learned Single aside by the
Judge vide a High Court in
Judgment dated the year 2003
30.05.2003. The much before the
Judgment was compassionate
upheld by the appointment
Division Bench Scheme was
in the year 2006 substituted by
and the matter an ex gratia
landed up Scheme in year
before this 2005;
Court thereafter. and (ii) that in
In other words, the year 2014,
the Scheme of the original
the year 2005 scheme for
came into force appointment on
: (i) after the compassionate
rejection of the grounds stood
application for revived, when
compassionate the civil appeals
appointment were decided.
under the old
scheme;
and (ii) after the
order of
rejection was
set aside by the
Single Judge of
the High Court
Indian The employee A new Scheme In the light of
WP No.9299/2023
Bank v. Promila died on was brought the decision
(2020) 2 SCC 15.01.2004 and into force on in Canara
729 [a two the application 24.07.2004 after Bank v. M.
member Bench] for appointment the death of the Mahesh Kumar,
was made by his employee. this Court held
minor son on Under this that the case of
24.01.2004. On Scheme an ex the claimant
these dates, a gratia cannot be
circular bearing compensation examined in the
No. 56/79 dated was provided context of the
4.04.1979 which for, subject to subsequent
contained a certain Scheme and
Scheme for conditions. that since the
appointment on After the family had
compassionate coming into taken full
grounds was in force of the new gratuity under
force. But the Scheme, the the old scheme,
Scheme provided claimant was they were not
for appointment, directed by the entitled to seek
only for those bank to submit compassionate
who do not opt a fresh appointment
for payment of application even under the
gratuity for the under the new old Scheme.
full term of Scheme. The
service of claimant did not
employee who apply under the
died in harness. new Scheme, as
he was
interested only
in
compassionate
appointment
and not
monetary
benefit.
N.C. Under the But by virtue of After taking
Santosh v. State existing Scheme an amendment note of a
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of referable to Rule to the proviso to reference made
Karnataka (2020 5 of the Rule 5, a minor in State Bank of
) 7 SCC 617 (a Karnataka Civil dependant India v. Sheo
three Member Services should apply Shankar
Bench) (Appointment on within one year Tewari to a
Compassionate from the date of larger bench, a
Grounds) Rules, death of the three member
1999, a minor Government Bench of this
dependant of a servant and Court held
deceased must have in N.C.
Government attained the age Santosh that the
employee may of 18 years on norms
apply within one the date of prevailing on
year from the making the the date of
date of attaining application. consideration of
majority. Applying the the application
amended should be the
provisions, the basis for
appointment of consideration of
persons already the claim for
made on compassionate
compassionate appointment.
grounds, were The Bench
cancelled by the further held that
appointing the dependant
authority which of a government
led to the employee, in
challenge the absence of
before this any vested right
Court. accruing on the
date of death of
the government
employee, can
only demand
consideration of
his application
and hence he is
disentitled to
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seek the
application of
the norms
prevailing on
the date of
death of the
government
servant.
13. Apart from the aforesaid decisions, our attention was also
drawn to the decision of the three member Bench in State of
Madhya Pradesh v. Amit Shrivas. But that case arose out of a
claim made by the dependant of a deceased Government
servant, who was originally appointed on a work charged
establishment and who later claimed to have become a
permanent employee. The Court went into the distinction
between an employee with a permanent status and an
employee with a regular status. Despite the claim of the
dependant that his father had become a permanent employee,
this Court held in that case that as per the policy prevailing on
the date of death, a work charged/contingency fund employee
was not entitled to compassionate appointment. While holding
so, the Bench reiterated the opinion in Indian Bank v. Promila.
14. The aforesaid decision in Amit Shrivas (supra) was
followed by a two member Bench of this Court in the yet to be
reported decision in the State of Madhya Pradesh v. Ashish
Awasthi decided on 18.11.2021.
15. Let us now come to the reference pending before the
larger Bench. In State Bank of India v. Sheo Shankar
Tewari (supra), a two member Bench of this Court noted the
apparent conflict between State Bank of India v. Raj
Kumar and MGB Gramin Bank on the one hand and Canara
Bank v. M. Mahesh Kumar on the other hand and referred the
matter for the consideration of a larger Bench. The order of
reference to a larger Bench was actually dated 8.02.2019.
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16. It was only after the aforesaid reference to a larger Bench
that this Court decided at least four cases, respectively
in (i) Indian Bank v. Promila; (ii) N.C. Santhosh v. State of
Karnataka; (iii) State of Madhya Pradesh v. Amit Shrivas;
and (iv) State of Madhya Pradesh v. Ashish Awasthi. Out of
these four decisions, N.C. Santosh (supra) was by a three
member Bench, which actually took note of the reference
pending before the larger Bench.
17. Keeping the above in mind, if we critically analyse the
way in which this Court has proceeded to interpret the
applicability of a new or modified Scheme that comes into
force after the death of the employee, we may notice an
interesting feature. In cases where the benefit under the
existing Scheme was taken away or substituted with a lesser
benefit, this Court directed the application of the new Scheme.
But in cases where the benefits under an existing Scheme
were enlarged by a modified Scheme after the death of the
employee, this Court applied only the Scheme that was in
force on the date of death of the employee. This is
fundamentally due to the fact that compassionate appointment
was always considered to be an exception to the normal
method of recruitment and perhaps looked down upon with
lesser compassion for the individual and greater concern for
the rule of law.
18. If compassionate appointment is one of the conditions of
service and is made automatic upon the death of an employee
in harness without any kind of scrutiny whatsoever, the same
would be treated as a vested right in law. But it is not so.
Appointment on compassionate grounds is not automatic, but
subject to strict scrutiny of various parameters including the
financial position of the family, the economic dependence of
the family upon the deceased employee and the avocation of
the other members of the family. Therefore, no one can claim
to have a vested right for appointment on compassionate
grounds. This is why some of the decisions which we have
tabulated above appear to have interpreted the applicability of
revised Schemes differently, leading to conflict of opinion.
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Though there is a conflict as to whether the Scheme in force
on the date of death of the employee would apply or the
Scheme in force on the date of consideration of the application
of appointment on compassionate grounds would apply, there
is certainly no conflict about the underlying concern reflected
in the above decisions. Wherever the modified Schemes
diluted the existing benefits, this Court applied those benefits,
but wherever the modified Scheme granted larger benefits, the
old Scheme was made applicable.
19. The important aspect about the conflict of opinion is that it
revolves around two dates, namely, (i) date of death of the
employee; and (ii) date of consideration of the application of
the dependant. Out of these two dates, only one, namely, the
date of death alone is a fixed factor that does not change. The
next date namely the date of consideration of the claim, is
something that depends upon many variables such as the date
of filing of application, the date of attaining of majority of the
claimant and the date on which the file is put up to the
competent authority. There is no principle of statutory
interpretation which permits a decision on the applicability
of a rule, to be based upon an indeterminate or variable
factor. Let us take for instance a hypothetical case where 2
Government servants die in harness on January 01, 2020. Let
us assume that the dependants of these 2 deceased
Government servants make applications for appointment on 2
different dates say 29.05.2020 and 02.06.2020 and a modified
Scheme comes into force on June 01, 2020. If the date of
consideration of the claim is taken to be the criteria for
determining whether the modified Scheme applies or not, it
will lead to two different results, one in respect of the person
who made the application before June 1, 2020 and another in
respect of the person who applied after June 01, 2020. In other
words, if two employees die on the same date and the
dependants of those employees apply on two different dates,
one before the modified Scheme comes into force and another
thereafter, they will come in for differential treatment if the
date of application and the date of consideration of the same
are taken to be the deciding factor. A rule of interpretation
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which produces different results, depending upon what the
individuals do or do not do, is inconceivable. This is why, the
managements of a few banks, in the cases tabulated above,
have introduced a rule in the modified scheme itself, which
provides for all pending applications to be decided under the
new/modified scheme. Therefore, we are of the considered
view that the interpretation as to the applicability of a
modified Scheme should depend only upon a determinate and
fixed criteria such as the date of death and not an
indeterminate and variable factor.
8. The Supreme Court in the case of State of Madhya Pradesh Vs.
Ashsish Awasthy by Judgment dated 18-11-2021 passed in C.A. No.
6903 of 2021 has held as under :
4. The deceased employee died on 08.10.2015. At the time of
death, he was working as a work charge employee, who was
paid the salary from the contingency fund. As per the
policy/circular prevalent at the time of the death of the
deceased employee, i.e., policy/circular No.C-3- 12/2013/1-3
dated 29.09.2014 in case of death of the employee working
on work charge, his dependents/heirs were not entitled to the
appointment on compassionate ground and were entitled to
Rs. 2 lakhs as compensatory amount. Subsequently, the
policy came to be amended vide circular dated 31.08.2016,
under which even in the case of death of the work charge
employee, his heirs/dependents will be entitled to the
appointment on compassionate ground. Relying upon the
subsequent circular/policy dated 31.08.2016, the Division
Bench of the High Court has directed the appellants to
consider the case of the respondent for appointment on
compassionate ground. As per the settled preposition of law
laid down by this Court for appointment on compassionate
ground, the policy prevalent at the time of death of the 4
deceased employee only is required to be considered and not
the subsequent policy. 4.1 In the case of Indian Bank and
Ors. Vs. Promila and Anr., (2020) 2 SCC 729, it is observed
WP No.9299/2023
and held that claim for compassionate appointment must be
decided only on the basis of relevant scheme prevalent on
date of demise of the employee and subsequent scheme
cannot be looked into. Similar view has been taken by this
Court in the case of State of Madhya Pradesh and Ors. Vs.
Amit Shrivas, (2020) 10 SCC 496. It is required to be noted
that in the case of Amit Shrivas (supra) the very scheme
applicable in the present case was under consideration and it
was held that the scheme prevalent on the date of death of
the deceased employee is only to be considered. In that view
of the matter, the impugned judgment and order passed by
the Division Bench is unsustainable and deserves to be
quashed and set aside.
9. Thus, it is clear that the policy for appointment on compassionate
ground which was in force on the date of death of the employee would
be relevant. The petitioner has not filed copy of the policy which was in
force on the date of death of his father. On the contrary, the petitioner is
trying to rely upon the policy which came into force w.e.f. 29.09.2014 to
claim that the aspirant can move an application for appointment on
compassionate ground within a period of one year from the date of
attaining majority. Thus, it is clear that the policy on which the
petitioner is placing reliance is not applicable.
10. Be that whatever it may be.
11. It is well established principle of law that appointment on
compassionate ground is not an alternative mode of recruitment. It is by
way of respite to the family members of the deceased employee, who
died giving rise to an unexpected situation on account of death of their
bread earner. Any delay in pursuing claim and approaching the Court
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would necessarily militate against claim for appointment on
compassionate ground.
12. The Supreme Court in the case of Steel Authority of India Ltd.
Vs. Gouri Devi by judgment dated 18.11.2021 passed in Civil Appeal
No.6910/2021 has held that delay in pursuing claim and approaching the
court would militate against claim for compassionate appointment as
very objective of providing immediate amelioration to family would
stand extinguished. In the case of State of J & K and others Vs. Sajad
Ahmed Mir reported in (2006) 5 SCC 766, the Supreme Court has held
that: -
"11. We may also observe that when the Division Bench of
the High Court was considering the case of the applicant
holding that he had sought 'compassion', the Bench ought to
have considered the larger issue as well and it is that such an
appointment is an exception to the general rule. 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 5 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 set
back. 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.
12. In State of Haryana and Ors. v. Rani Devi and Anr., it
was held that the claim of applicant for appointment on
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compassionate ground is based on the premise that he was
dependent on the deceased employee. Strictly this claim
cannot be upheld on the touchstone of Article 14 or 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 and 16. Appointment on compassionate ground
cannot be claimed as a matter of right.
13. In Life Insurance Corporation of India v. Asha
Ramchandra Ambekar (Mrs.) and Anr., it was indicated
that High Courts and Administrative Tribunals cannot confer
benediction impelled by sympathetic considerations to make
appointments on compassionate grounds when the
regulations framed in respect thereof do not cover and
contemplate such appointments.
14. In Umesh Kumar Nagpal v. State of Haryana and
Ors., it was ruled that public service appointment should be
made strictly on the basis of open invitation of applications
and on merits. The appointment on compassionate ground
cannot be a source of recruitment. It is merely an exception
to the requirement of law keeping in view the fact of the
death of employee while in 6 service leaving his family
without any means of livelihood. In such cases, the object is
to enable the family to get over sudden financial crisis. Such
appointments on compassionate ground, therefore, have to
be made in accordance with rules, regulations or
administrative instructions taking into consideration the
financial condition of the family of the deceased. This
favorable treatment to the dependent of the deceased
employee must have clear nexus with the object sought to be
achieved thereby, i.e. relief against destitution. At the same
time, however, it should not be forgotten that as against the
destitute family of the deceased, there are millions and
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millions of other families which are equally, if not more,
destitute. The exception to the rule made in favour of the
family of the deceased employee is in consideration of the
services rendered by him and the legitimate expectation, and
the change in the status and affairs of the family engendered
by the erstwhile employment, which are suddenly upturned.
15. In Smt. Sushma Gosain and Ors. v. Union of India
and Ors. 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.
16. Recently, in Commissioner of Public Instructions and
Ors. v. K.R. Vishwanath, one of us (Pasayat, J.) had an
occasion to consider the above decisions and the principles
laid down therein have been reiterated.
17. In the case on hand, the father of the applicant died in
March, 1987. The application was made by the applicant
after four and half years in September, 1991 which was
rejected in March, 1996. The writ petition was filed in June,
1999 which was dismissed by the learned single Judge in
July, 2000. When the Division Bench decided the matter,
more than fifteen years had 7 passed from the date of death
of the father of the applicant. The said fact was indeed a
relevant and material fact which went to show that the family
survived in spite of death of the employee. Moreover, in our
opinion, the learned single Judge was also right in holding
that though the order was passed in 1996, it was not
challenged by the applicant immediately. He took chance of
challenging the order in 1999 when there was inter-
departmental communication in 1999. The Division Bench,
in our view, hence ought not to have allowed the appeal."
(Underline Supplied)
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13. It is true that the petitioner had approached this Court in the year
2008 for seeking a direction for the respondents to decide his application
for grant of compassionate appointment. The said writ petition was
finally disposed of by this Court by order dated 18.03.2010. It appears
that the petitioner filed a Contempt Petition No.842/2023 i.e. 13 years of
the direction issued by this Court. Although it is submitted by the
counsel for the petitioner that he was regularly making representation
but the copy of order dated 21.02.2013 was not made applicable to him.
This contention of the petitioner cannot be accepted. Repeated
representations will not give rise any fresh cause of action.
14. The Supreme Court in the case of U.P. Jal Nigam Vs. Jaswant
Singh reported in (2006) 11 SCC 464 has held as under :
12. The statement of law has also been summarised in
Halsbury's Laws of England, para 911, p. 395 as follows:
"In determining whether there has been such delay as to
amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii) any change of position that has occurred on the
defendant's part.
Acquiescence in this sense does not mean standing by
while the violation of a right is in progress, but assent
after the violation has been completed and the claimant
has become aware of it. It is unjust to give the claimant a
remedy where, by his conduct, he has done that which
might fairly be regarded as equivalent to a waiver of it; or
where by his conduct and neglect, though not waiving the
remedy, he has put the other party in a position in which
it would not be reasonable to place him if the remedy
were afterwards to be asserted. In such cases lapse of
time and delay are most material. Upon these
considerations rests the doctrine of laches."
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15. The Supreme Court in the case of Jagdish Lal Vs. State of
Haryana reported in (1997) 6 SCC 538 has held as under :
18. That apart, as this Court has repeatedly held, the delay
disentitles the party to the discretionary relief under Article
226 or Article 32 of the Constitution.
16. The Supreme Court in the case of NDMC Vs. Pan Singh reported
in (2007) 9 SCC 278 has held as under :
17. Although, there is no period of limitation provided for
filing a writ petition under Article 226 of the Constitution of
India, ordinarily, writ petition should be filed within a
reasonable time. (See Lipton India Ltd. v. Union of India and
M.R. Gupta v. Union of India.)
18. In Shiv Dass v. Union of India this Court held: (SCC p.
277, paras 9-10)
"9. It has been pointed out by this Court in a number of
cases that representations would not be adequate
explanation to take care of delay. This was first stated in
K.V. Rajalakshmiah Setty v. State of Mysore. There is a
limit to the time which can be considered reasonable for
making representations and if the Government had turned
down one representation the making of another
representation on similar lines will not explain the delay.
In State of Orissa v. Pyarimohan Samantaray making of
repeated representations was not regarded as satisfactory
explanation of the delay. In that case the petition had
been dismissed for delay alone. (See also State of Orissa
v. Arun Kumar Patnaik.)
10. In the case of pension the cause of action actually
continues from month to month. That, however, cannot
be a ground to overlook delay in filing the petition. It
would depend upon the fact of each case. If petition is
filed beyond a reasonable period say three years normally
the Court would reject the same or restrict the relief
which could be granted to a reasonable period of about
three years. The High Court did not examine whether on
WP No.9299/2023
merit the appellant had a case. If on merits it would have
found that there was no scope for interference, it would
have dismissed the writ petition on that score alone."
19. We, therefore, are of the opinion that it was not a fit case
where the High Court should have exercised its discretionary
jurisdiction in favour of the respondents herein.
17. The Supreme Court in the case of State of Uttaranchal v. Shiv
Charan Singh Bhandari reported in (2013) 12 SCC 179 has held as
under :
19. From the aforesaid authorities it is clear as crystal that
even if the court or tribunal directs for consideration of
representations relating to a stale claim or dead grievance it
does not give rise to a fresh cause of action. The dead cause of
action cannot rise like a phoenix. Similarly, a mere submission
of representation to the competent authority does not arrest
time.
****
28. Remaining oblivious to the factum of delay and laches and
granting relief is contrary to all settled principles and even
would not remotely attract the concept of discretion. We may
hasten to add that the same may not be applicable in all
circumstances where certain categories of fundamental rights
are infringed. But, a stale claim of getting promotional benefits
definitely should not have been entertained by the Tribunal and
accepted by the High Court.
18. The Supreme Court in the case of C. Jacob v. Director of
Geology and Mining reported in (2008) 10 SCC 115 has held as under:
"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
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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."
19. The Supreme Court in the case of Union of India v. M.K. Sarkar
reported in (2010) 2 SCC 59 has held as under :
"15. When a belated representation in regard to a 'stale' or
'dead' issue/dispute is considered and decided, in compliance
with a direction by the court/tribunal to do so, the date of such
decision cannot be considered as furnishing a fresh cause of
action for reviving the 'dead' issue or time-barred dispute.
The issue of limitation or delay and laches should be
considered with reference to the original cause of action and
not with reference to the date on which an order is passed in
compliance with a court's direction. Neither a court's
direction to consider a representation issued without
examining the merits, nor a decision given in compliance with
such direction, will extend the limitation, or erase the delay
and laches."
20. The Supreme Court in the case of State of T.N. v. Seshachalam
reported in (2007) 10 SCC 137 has held as under :
"16. ... filing of representations alone would not save the
period of limitation. Delay or laches is a relevant factor for a
court of law to determine the question as to whether the claim
made by an applicant deserves consideration. Delay and/or
laches on the part of a government servant may deprive him of
the benefit which had been given to others. Article 14 of the
Constitution of India would not, in a situation of that nature,
be attracted as it is well known that law leans in favour of
those who are alert and vigilant."
21. The contention of the petitioner that he was not aware of the order
dated 21.02.2013 does not appear to be correct. Contempt Petition
WP No.9299/2023
No.842/2023 was filed on 21.03.2023 and it was withdrawn on day one
by order dated 12.04.2023. Even the notices were also not issued in the
contempt petition. No return was filed by the respondents in the
contempt petition. Thus, it cannot be said that the petitioner came to
know about the order dated 21.02.2013 only when the same was filed
alongwith the return. Thus, it is clear that the petitioner was already
aware of the order dated 21.02.2013 and before the notices could be
issued in the contempt petition, he withdrew the same with liberty to file
writ petition.
22. Furthermore, according to the petitioner, his mother was alive on
the date of death of his father. The marital status of the sisters of the
petitioner on the date of death of the father has not been disclosed. If the
sisters of the petitioners were unmarried on the date of death of their
father, then her mother could have given her no objection for giving
appointment on compassionate ground to her unmarried daughters but
even that was not done. Thus, it is clear that the other dependants of late
Kanhaiya Lal, who were otherwise eligible for appointment on
compassionate ground, did not apply for the same. As per the policy for
appointment on compassionate ground, first of all the wife of the
deceased employee would be eligible to make an application for
appointment on compassionate ground and only if she is not holding
minimum qualifications or if she is not interested to take appointment
on compassionate ground, then she can nominate her son or unmarried
daughter. The appointment on compassionate ground can be granted to
the dependants in chronological order. Since the sisters of the petitioner
were eligible on the date of death of their father and they did not apply
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for appointment on compassionate ground, therefore, under these
circumstances, it is clear that the family of the petitioner was not in need
of appointment on compassionate ground.
23. Furthermore, as the petitioner was all the time sleeping over his
right for the last 13 long years i.e. after the direction was given by this
Court in W.P. No.209/2008(s) and did not approach the Court for
redressal of his grievance, this Court is of the considered opinion that no
case is made out for grant of appointment on compassionate ground.
24. Accordingly, the petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
vc
Digitally signed by
VARSHA CHOURASIYA
Date: 2023.06.16
11:09:09 +05'30'
