Madhya Pradesh High Court
Ramsingh Uikey vs The State Of Madhya Pradesh on 17 October, 2023
Author: Gurpal Singh Ahluwalia
1 W.P.No.26777/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 17th OF OCTOBER, 2023
WRIT PETITION No. 26777 of 2023
BETWEEN:-
RAMSINGH UIKEY S/O LATE SHRI SHIVLAL
UIKEY (PEON), AGED ABOUT 48 YEARS,
OCCUPATION: LABOUR R/O WARD NO. 8, TEHSIL
BUDNI, DISTRICT SEHORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI NITESH KUMAR JAIN - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH THE DEPUTY SECRETARY
WOMEN AND CHILD DEVELOPMENT
DEPARTMENT VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. THE COLLECTOR, SEHORE, DISTRICT
SEHORE (MADHYA PRADESH)
3. DISTRICT PROGRAME OFFICER WOMEN
AND CHILD DEVELOPMENT DEPARTMENT
DISTRICT SEHORE (MADHYA PRADESH)
4. PROJECT OFFICER PROJECT BUDHNI
DISTRICT SEHORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MOHAN SAUSARKAR - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, the court passed
the following:
2 W.P.No.26777/2023
ORDER
This petition under Article 226 of Constitution of India has
been filed seeking following reliefs:-
"(i) That this Hon'ble Court may kindly be Quashed the
Impugned order dated 18/8/23 Annexure P/12 passed
by respondent no.1 in the interest of justice.
(ii) A writ order or direction in the nature of mandamus
or any other appropriate writ thereby directing the
respondents to appoint the petitioner in the appropriate
post on compassionate appointment basis in
department of the concerned department of the State
Government with all consequential benefits such as
arrears of salary, continuity in service, seniority and
future promotions etc.
(iii) Any other appropriate writ, order or direction
which the Hon'ble court may deem just and proper in
the nature and circumstances of the case."
2. It is the case of petitioner that adopted father of the petitioner
namely Shri Shiv Lal Uike who was working as Peon in the office of
respondent No.5 died in harness on 16.08.2013. Thereafter, the
petitioner moved an application for his appointment on compassionate
ground. Since the application filed by petitioner was kept pending and
it was not decided by respondents, therefore, the petitioner filed
W.P.No.10025/2023 for a direction to the respondents to decide the
application filed by petitioner. Accordingly, by order dated 04.05.2023,
the petition was allowed and respondents were directed to decide the
application filed by petitioner for grant of appointment on
compassionate ground within a period of 3 months from the date of
receipt of copy of this order. Accordingly, by impugned order dated
18.08.2023, the claim of the petitioner for his appointment on
compassionate ground has been rejected.
3. It is submitted by counsel for petitioner that adopted father of
the petitioner was issueless and therefore in the year 1985 petitioner
was adopted. Earlier, the petitioner was directed by respondents to seek
a declaration from the Court with regard to his adoption and therefore
the petitioner had filed a Civil Suit No. RCSA No.03/2018 for
declaration that the petitioner is the adopted son of late Shri Shiv Lal
Gaur. The said civil suit was decreed by Civil Judge Class-1, Budni,
District Sehore by judgment and decree dated 29.08.2019 and it was
declared that petitioner is the adopted son of late Shri Shiv Lal Gaur.
Thus it is submitted that the rejection of claim of the petitioner for his
appointment on compassionate ground is bad.
4. Per contra, the petition is vehemently opposed by counsel for
State. By referring to the judgment and decree passed by the trial
Court, it is submitted that said judgment and decree was passed on the
consent of the parties. The defendant Nos. 4 to 7 had admitted the
plaint averments and therefore the decree was passed. However, by
referring to the mark sheet of petitioner of Middle School Examination
conducted in the year 1992-93, it is submitted that the name of
biological father of petitioner is mentioned as his father. Thus, it is
clear that if the petitioner was adopted by late Shri Shiv Lal Uike in the
year, 1985, then there was no reason for mentioning of name of
biological father in the mark sheet of petitioner, which was issued in
the year 1992-93.
5. Heard the learned counsel for parties.
6. The petitioner has filed mark sheet of Middle School
Examination, which was conducted in the year 1992-93. From this
mark sheet, it is clear that petitioner had appeared in the examination
as a regular student of Indira Gandhi Convent School, Bhopal. The
adopted father of petitioner was resident of Budni, District Sehore
whereas petitioner had prosecuted his study as a regular student of a
school at Bhopal. The petitioner has not explained that if the petitioner
was residing at Budni, then how he could prosecute his school studies
as regular student of Indira Gandhi Convent School, Bhopal.
7. Be that whatever it may be.
8. But one thing is clear. In the mark sheet, which was issued in
the year 1992-93, the name of his biological father was mentioned as
his father. Furthermore, the important aspect of the matter is that the
policy for appointment on compassionate ground, which was in force
on the date of death of deceased employee is relevant. Since, late Shri
Shiv Lal Uike expired in the year 2013, therefore the policy dated
18.08.2008 was in force. As per clause-2 of the said policy, there was
no provision for giving appointment to the adopted son of the deceased
employee. However, it appears that for the first time in the policy of
the year, 2014 even adopted son of deceased employee was made
eligible for appointment on compassionate ground. Even, it is
presumed that petitioner was adopted by Shiv Lal Uike in the year
1985 still there was no provision in the policy of 2008 to the effect that
adopted son is eligible.
9. Furthermore, the petitioner has disclosed his age as 48 years
in the cause title, therefore it is clear that at the time of death of late
Shiv Lal Gond, the petitioner aged about was 38 years. The petitioner
has not disclosed as to whether he is married and having children or
not.
10. The Supreme Court in the case Indian Bank v. Promila,
reported in (2020) 2 SCC 729 has held that the policy for appointment
on compassionate ground, which was in force on the date of death of
the employee, is the relevant policy and has further 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 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."
11. 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 laid Court held that
main criterion, down few the application
was in force, on parameters for of the dependant
the date of death determining made in the year
of the employee penury. One of 2000, after the
in the year 1999. the parameters death of the
was to see if the employee in the
income of the year 1999,
family had been cannot be
reduced to less decided on the
than 60% of the basis of a
salary drawn by Scheme which
the employee at came into force
the time of in the year 2005.
death.
Therefore, the
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 04.08.2005 that the
Kumar (2010) 1.10.2004 and a new Scheme application
11 SCC 661 [a the applications for payment of could be
two member for exgratia lump- considered only
Bench] compassionate sum was under the new
appointment introduced in the Scheme, as it
were made on place of the old contained a
6.06.2005 and Scheme. The specific
14.06.2005. On new Scheme provision
the date of death contained a relating to
and on the date provision to the pending
of the effect that all applications.
applications, a applications
Scheme known pending under
as the old Scheme
compassionate will be dealt
appointment with only in
Scheme was in accordance with
force. the new
Scheme.
MGB Gramin The employee However, a new This Court took
Bank v. Chakra died on Scheme dated the view that the
warti 19.04.2006 and 12.06.2006 new Scheme
Singh (2014) 13 the application came into force alone would
SCC 583 [a two for appointment on 6.10.2006, apply as it
member 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 year important
compassionate 2005. But by the distinguishing
grounds, was time the 2005 features,
made under the Scheme was namely, (i) that
Scheme of the issued, the the application
year 1993. It claimant had for appointment
was 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 an
and the matter ex gratia
landed up before Scheme in year
this Court 2005;
thereafter. In and (ii) that in
other words, the the year 2014,
Scheme of the the original
year 2005 came scheme for
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
Bank v. Promila died on was brought into the decision
(2020) 2 SCC 15.01.2004 and 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 that
Scheme for conditions. After since the family
appointment on the coming into had taken full
compassionate force of the new gratuity under
grounds was in Scheme, the the old scheme,
force. But the claimant was they were not
Scheme directed by the entitled to seek
provided for bank to submit a compassionate
appointment, fresh application appointment
only for those under the new even under the
who do not opt Scheme. The old Scheme.
for payment of claimant did not
gratuity for the apply under the
full term of new Scheme, as
service of he was
employee who interested only
died in harness. 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
of referable to Rule to the proviso to reference made
Karnataka (202 5 of the Rule 5, a minor in State Bank of
0) 7 SCC 617 (a Karnataka Civil dependant India v. Sheo
three Member Services should apply Shankar
Bench) (Appointment within one year Tewari to a
on from the date of larger bench, a
Compassionate death of the three member
Grounds) Rules, Government Bench of this
1999, a minor servant and must Court held
dependant of a have attained the in N.C.
deceased age of 18 years Santosh that the
Government on the date of norms
employee may making the prevailing on the
apply within one application. date of
year from the Applying the consideration of
date of attaining amended the application
majority. provisions, the should be the
appointment of basis for
persons already consideration of
made on the claim for
compassionate compassionate
grounds, were appointment.
cancelled by the The Bench
appointing further held that
authority which the dependant of
led to the a government
challenge before employee, in the
this Court. absence of any
vested right
accruing on the
date of death of
the government
employee, can
only demand
consideration of
his application
and hence he is
disentitled to
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.
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. 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 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."
12. 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 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 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."
13. Since, the policy which was in force on the date of death of
Shiv Lal Uike is relevant and on the said date the adopted son was not
eligible for his appointment on compassionate ground, therefore, even
otherwise, the petitioner was not entitled for his appointment.
Furthermore, appointment on compassionate ground is not an
alternative mode of direct recruitment but it is a concession to the
grieved family to tide over the unexpected situation which had arisen
on account of untimely death of the bread winner.
14. Furthermore, the Supreme Court in the case of The State of
West Bengal Vs. Debabrata Tiwari and Ors. Etc., decided on 3rd
March, 2023 in Civil Appeal Nos.8842-8855 of 2022 it has been held
as under:-
"7.2. On consideration of the aforesaid decisions of this
Court, the following principles emerge:
i. That a provision for compassionate
appointment makes a departure from the
general provisions providing for appointment
to a post by following a particular procedure
of recruitment. Since such a provision enables
appointment being made without following
the said procedure, it is in the nature of an
exception to the general provisions and must
be resorted to only in order to achieve the
stated objectives, i.e., to enable the family of
the deceased to get over the sudden financial
crisis.
ii. Appointment on compassionate grounds is
not a source of recruitment. The reason for
making such a benevolent scheme by the State
or the public sector undertaking is to see that
the dependants of the deceased are not
deprived of the means of livelihood. It only
enables the family of the deceased to get over
the sudden financial crisis.
iii. Compassionate appointment is not a vested
right which can be exercised at any time in
future. Compassionate employment cannot be
claimed or offered after a lapse of time and
after the crisis is over.
iv. That compassionate appointment should be
provided immediately to redeem the family in
distress. It is improper to keep such a case
pending for years.
v. In determining as to whether the family is
in financial crisis, all relevant aspects must be
borne in mind including the income of the
family, its liabilities, the terminal benefits if
any, received by the family, the age,
dependency and marital status of its members,
together with the income from any other
source.
7.3. The object underlying a provision for grant of
compassionate employment is to enable the family of the
deceased employee to tide over the sudden crisis due to the
death of the bread-earner which has left the family in
penury and without any means of livelihood. Out of pure
humanitarian consideration and having regard to the fact
that unless some source of livelihood is provided, the
family would not be in a position to make both ends meet,
a provision is made for giving gainful appointment to one
of the dependants of the deceased who may be eligible for
such appointment. Having regard to such an object, it
would be of no avail to grant compassionate appointment
to the dependants of the deceased employee, after the
crisis which arose on account of death of a bread-winner,
has been overcome. Thus, there is also a compelling need
to act with a sense of immediacy in matters concerning
compassionate appointment because on failure to do so,
the object of the scheme of compassionate would be
frustrated. Where a long lapse of time has occurred since
the date of death of the deceased employee, the sense of
immediacy for seeking compassionate appointment would
cease to exist and thus lose its significance and this would
be a relevant circumstance which must weigh with the
authorities in determining as to whether a case for the
grant of compassionate appointment has been made out for
consideration.
7.4. As noted above, the sine qua non for entertaining a
claim for compassionate appointment is that the family of
the deceased employee would be unable to make two ends
meet without one of the dependants of the deceased
employee being employed on compassionate grounds. The
financial condition of the family of the deceased, at the
time of the death of the deceased, is the primary
consideration that ought to guide the authorities' decision
in the matter.
7.5. Considering the second question referred to above, in
the first instance, regarding whether applications for
compassionate appointment could be considered after a
delay of several years, we are of the view that, in a case
where, for reasons of prolonged delay, either on the part of
the applicant in claiming compassionate appointment or
the authorities in deciding such claim, the sense of
immediacy is diluted and lost. Further, the financial
circumstances of the family of the deceased, may have
changed, for the better, since the time of the death of the
government employee. In such circumstances, Courts or
other relevant authorities are to be guided by the fact that
for such prolonged period of delay, the family of the
deceased was able to sustain themselves, most probably by
availing gainful employment from some other source.
Granting compassionate appointment in such a case, as
noted by this 6 W.P.No.19868/2023 Court in Hakim Singh
would amount to treating a claim for compassionate
appointment as though it were a matter of inheritance
based on a line of succession which is contrary to the
Constitution. Since compassionate appointment is not a
vested right and the same is relative to the financial
condition and hardship faced by the dependents of the
deceased government employee as a consequence of his
death, a claim for compassionate appointment may not be
entertained after lapse of a considerable period of time
since the death of the government employee.
8. Laches or undue delay, the blame-worthy conduct of a
person in approaching a Court of Equity in England for
obtaining discretionary relief which disentitled him for
grant of such relief was explained succinctly by Sir Barnes
Peacock, in Lindsay Petroleum Co. vs. Prosper
Armstrong, (1874) 3 PC 221 as under:
"Now the doctrine of laches in Courts of
Equity is not an arbitrary or a technical
doctrine. Where it would be practically unjust
to give a remedy, either because the party has,
by his conduct, done that which might fairly
be regarded as equivalent to a waiver of it, or
where by his conduct and neglect he has,
though perhaps not waiving that remedy, yet
put the other party in a situation, in which it
would not be reasonable to place him if the
remedy were afterwards to be asserted, in
either of these cases, lapse of time and delay
are most material. But in every case, if an
argument against relief, which otherwise
would be just, is founded upon mere delay,
that delay of course not amounting to a bar by
any statute or limitations, the validity of that
defence must be tried upon principles
substantially equitable. Two circumstances,
always important in such cases, are, the length
of the delay and the nature of the acts done
during the interval, which might affect either
party and cause a balance of Justice or
injustice in taking the one course or the other,
so far as it relates to the remedy."
Whether the above doctrine of laches which disentitled
grant of relief to a party by Equity Court of England, could
disentitle the grant of relief to a person by the High Court
in the exercise of its power under Article 226 of our
Constitution, came up for consideration before a
Constitution Bench of this Court in Moon Mills Ltd. vs.
M. R. Meher, President, Industrial Court, Bombay, AIR
1967 SC 1450. In the said case, it was regarded as a
principle that disentitled a party for grant of relief from a
High Court in the exercise of its discretionary power under
Article 226 of the Constitution.
In State of M.P. vs. Nandlal Jaiswal, (1986) 4 SCC
566 this Court restated the principle articulated in earlier
pronouncements in the following words:
"9. ... the High Court in exercise of its
discretion does not ordinarily assist the tardy
and the indolent or the acquiescent and the
lethargic. If there is inordinate delay on the
part of the Petitioner and such delay is not
satisfactorily explained, the High Court may
decline to intervene and grant relief in
exercise of its writ jurisdiction. It was stated
that this Rule is premised on a number of
factors. The High Court does not ordinarily
permit a belated resort to the extraordinary
remedy because it is likely to cause confusion
and public inconvenience and bring, in its
train new injustices, and if writ jurisdiction is
exercised after unreasonable delay, it may
have the effect of inflicting not only hardship
and inconvenience but also injustice on third
parties. It was pointed out that when writ
jurisdiction is invoked, unexplained delay
coupled with the creation of third-party rights
in the meantime is an important factor which
also weighs with the High Court in deciding
whether or not to exercise such jurisdiction."
While we are mindful of the fact that there is no period
of limitation provided for filing a writ petition under
Article 226 of the Constitution, ordinarily, a writ petition
should be filed within a reasonable time, vide Jagdish Lal
vs. State of Haryana, (1997) 6 SCC 538; NDMC vs. Pan
Singh, (2007) 9 SCC 278.
9. Further, simply because the Respondents-Writ
Petitioners submitted their applications to the relevant
authority in the year 2005-2006, it cannot be said that they
diligently perused the matter and had not slept over their
rights. In this regard, it may be apposite to refer to the
decision of this Court in State of Uttaranchal vs. Shiv
Charan Singh Bhandari, (2013) 12 SCC 179, wherein the
following observations were made:
"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."
(emphasis by us)
*******
10. Applying the said ratio to the facts of the present
case, we hold that the Respondents-Writ Petitioners, upon
submitting their applications in the year 2006-2005 did
nothing further to pursue the matter, till the year 2015 i.e.,
for a period of ten years. Notwithstanding the tardy
approach of the authorities of the Appellant-State in
dealing with their applications, the Respondent-Writ
Petitioners delayed approaching the High Court seeking a
writ in the nature of a mandamus against the authorities of
the State. In fact, such a prolonged delay in approaching
the High Court, may even be regarded as a waiver of a
remedy, as discernible by the conduct of the Respondents-
Writ Petitioners. Such a delay would disentitle the
Respondents-Writ Petitioners to the discretionary relief
under Article 226 of the Constitution. Further, the order of
the High Court dated 17th March, 2015, whereby the writ
petition filed by some of the Respondents herein was
disposed of with a direction to the Director of Local
Bodies, Government of West Bengal to take a decision as
to the appointment of the Respondents-Writ Petitioners,
cannot be considered to have the effect of revival of the
cause of action.
11. It may be apposite at this juncture to refer to the
following observations of this Court in Malaya Nanda
Sethy vs. State of Orissa, AIR 2022 SC 2836, as to the
manner in which the authorities must consider and decide
applications for appointment on compassionate grounds:
"9. Before parting with the present order, we
are constrained to observe that considering the
object and purpose of appointment on
compassionate grounds, i.e., a family of a
deceased employee may be placed in a
position of financial hardship upon the
untimely death of the employee while in
service and the basis or policy is immediacy
in rendering of financial assistance to the
family of the deceased consequent upon his
untimely death, the authorities must
consider and decide such applications for
appointment on compassionate grounds as
per the policy prevalent, at the earliest, but
not beyond a period of six months from the
date of submission of such completed
applications.
We are constrained to direct as above as
we have found that in several cases,
applications for appointment on
compassionate grounds are not attended in
time and are kept pending for years together.
As a result, the applicants in several cases
have to approach the concerned High Courts
seeking a writ of Mandamus for the
consideration of their applications. Even after
such a direction is issued, frivolous or
vexatious reasons are given for rejecting the
applications. Once again, the applicants have
to challenge the order of rejection before the
High Court which leads to pendency of
litigation and passage of time, leaving the
family of the employee who died in harness in
the lurch and in financial difficulty. Further,
for reasons best known to the authorities and
on irrelevant considerations, applications
made for compassionate appointment are
rejected. After several years or are not
considered at all as in the instant case.
If the object and purpose of
appointment on compassionate grounds as
envisaged under the relevant policies or the
rules have to be achieved then it is just and
necessary that such applications are
considered well in time and not in a tardy
way. We have come across cases where for
nearly two decades the controversy regarding
the application made for compassionate
appointment is not resolved. This
consequently leads to the frustration of the
very policy of granting compassionate
appointment on the death of the employee
while in service. We have, therefore, directed
that such applications must be considered at
an earliest point of time. The consideration
must be fair, reasonable and based on relevant
consideration. The application cannot be
rejected on the basis of frivolous and for
reasons extraneous to the facts of the case.
Then and then only the object and purpose of
appointment on compassionate grounds can be
achieved."
(emphasis by us)
In the said case, the claim of the appellant-applicant
therein for compassionate appointment was directed by
this Court to be considered by the competent authority.
This Court noted that in the said case, there was no lapse
on the part of the appellant-applicant therein in diligently
pursuing the matter. The delay in considering the
application of the appellant therein was held to be solely
attributable to the authorities of the State, and no part of it
was occasioned by the appellant-applicant. Further, in the
said case, the appellant-applicant was prejudiced not only
because of the prolonged delay in considering his
application but also by the fact that in the interim, the
policy of the State governing compassionate appointment
had changed to his detriment. Therefore, the facts of the
said case were distinct from the facts involved herein. In
the present case, the conduct of the Respondents-Writ
Petitioners cannot be said to be blameless in that they did
not pursue their matter with sufficient diligence. However,
the observations made in the said case as to the manner in
which applications for compassionate appointment are to
be considered and disposed of are relevant to the present
case.
As noted in the said case, the operation of a
policy/scheme for compassionate appointment is founded
on considerations of immediacy. A sense of immediacy is
called for not only in the manner in which the applications
are processed by the concerned authorities but also in the
conduct of the applicant in pursuing his case, before the
authorities and if needed before the Courts.
12. In the present case, the applications for compassionate
appointment were made by the Respondents-Writ
Petitioners in the year 2005-2006. Admittedly, the first
concrete step taken by the Chairman of the Burdwan
Municipality was in the year 2013, when the said authority
forwarded a list of candidates to be approved by the
Director of Local Bodies, Burdwan Municipality. The
Respondents-Writ Petitioners knocked on the doors of the
High Court of Calcutta only in the year 2015, i.e., after a
lapse of nearly ten years from the date of making the
application for compassionate appointment. The
Respondents-Writ Petitioners were not prudent enough to
approach the Courts sooner, claiming that no concrete step
had been taken by the Appellant-State in furtherance of the
application by seeking a Writ in the nature of Mandamus.
13. The sense of immediacy in the matter of
compassionate appointment has been lost in the present
case. This is attributable to the authorities of the
Appellant-State as well as the Respondents-Writ
Petitioners. Now, entertaining a claim which was made in
2005-2006, in the year 2023, would be of no avail, because
admittedly, the Respondents-Writ Petitioners have been
able to eke out a living even though they did not
successfully get appointed to the services of the
Municipality on compassionate grounds. Hence, we think
that this is therefore not fit cases to direct that the claim of
the Respondents-Writ Petitioners for appointments on
compassionate grounds, be considered or entertained. "
15. Late Shri Shiv Lal Unike had expired in the year 2013 and 10
long years have passed. If the petitioner has successfully survived for
10 years, then that by itself it is sufficient to reject the claim of the
petitioner for appointment on compassionate ground. Viewed from
every angle, it is clear that the petitioner is not entitled for appointment
on compassionate ground. Furthermore, if petitioner was adopted by
late Shri Shiv Lal Uike, then he should have made some reference or
declaration in his service book but no such declaration was also found
in the service book.
16. Accordingly, no case is made out warranting interference in
the impugned order dated 18.08.2023.
17. The petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
vinay*
VINAY KUMAR BURMAN
2023.10.19 19:25:10 +05'30'
