Madhya Pradesh High Court
Yogesh Vaishnav vs The State Of Madhya Pradesh on 14 October, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:51332
1 WP-29743-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 14th OF OCTOBER, 2024
WRIT PETITION No. 29743 of 2024
YOGESH VAISHNAV
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Ms. Sushma Bairagy - Advocate for petitioner.
Shri Sumit Raghuvanshi - Government Advocate for respondents/State.
ORDER
Assailing the order dated 07.06.2024 (Annexure P/6) passed by the
respondent No.3 by which the claim of the petitioner for grant of
compassionate appointment has been rejected, the present petition has been
filed.
2. It is the case of the petitioner that his father was appointed as
Sahayak Adhyapak in the respondents/department and expired on 01.04.2008
while in service. At the relevant point of time, the petitioner was minor and
after attaining the age of majority, he has filed an application for grant of
compassionate appointment along with relevant documents. Since the
representation of the petitioner has not been decided, he preferred a writ
petition being W.P.No.11108 of 2024 before this Court and this Court vide
order dated 06.05.2024 has directed the respondents to decide the
representation of the petitioner. In compliance of the same, the impugned
order has been passed rejecting the claim of the petitioner on the ground of
NEUTRAL CITATION NO. 2024:MPHC-JBP:51332
2 WP-29743-2024
delay relying upon clause 7.1 of the circular dated 22.01.2007. Hence, the
present petition.
3. Per contra, learned counsel appearing for the State has vehemently
opposed the contentions and supported the impugned order. It is pointed out
that death has taken place on 01.04.2008 and the application has been
preferred on 31.01.2020 i.e. after seven years of death of the employee and
in terms of clause 7.1 of the circular dated 22.01.2007, compassionate
appointment cannot be granted to the dependent. The sole consideration for
grant of compassionate appointment is to overcome the sudden hardship
being faced by the dependent of the sole earner of the family owing to
sudden demise. The factum of penury and dependency and the urgent
requirement of a job, are the factors to be considered in the cases of
compassionate appointment. In the present case, the petitioner and other
family members have survived for a considerable period of more than 16
years. The very object of grant of compassionate appointment will be
defeated and frustrated in the present facts and circumstances of the case. He
has prayed for dismissal of the writ petition.
4. Heard learned counsel for the parties and perused the record.
5. The law with respect to compassionate appointment is considered
and decided in several judgments and held that the compassionate
appointment cannot be an alternate mode of recruitment, rather it is in a form
of compassion shown by the authorities while considering the cases. The
Hon'ble Supreme Court in several cases has held there are two recognized
contingencies for grant of compassionate appointment; (i) to meet the
NEUTRAL CITATION NO. 2024:MPHC-JBP:51332
3 WP-29743-2024
sudden crisis occurring on account of death of the bread winner of the family
and; (ii) to meet the crisis in a family on account of medical invalidation of
the bread winner of the family. The factum of dependency and penury are
required to be considered by the authorities.
6. The Hon'ble Supreme Court in the case of Santosh Kumar Dubey
vs. State of U.P., reported in (2009) 6 SCC 481 has held as under:
"12. The request for appointment on compassionate grounds
should be reasonable and proximate to the time of the death of the
bread earner of the family, inasmuch as the very purpose of giving
such benefit is to make financial help available to the family to
overcome sudden economic crisis occurring in the family of the
deceased who has died in harness. But this, however, cannot be
another source of recruitment. This also cannot be treated as a
bonanza and also as a right to get an appointment in government
service."
7. The Hon'ble Supreme Court in the case of Sanjay Kumar vs. State
of Bihar and others, reported in (2000) 7 SCC 192 has held as under:
"3... This Court has held in a number of cases that compassionate
appointment is intended to enable the family of the deceased
employee to tide over sudden crisis resulting due to death of the
bread earner who had left the family in penury and without any
means of livelihood. In fact such a view has been expressed in the
very decision cited by the petitioner in Director of Education Vs.
Pushpendra Kumar. It is also significant to notice that on the date
when the first application was made by the petitioner on
02/06/1988, the petitioner was a minor and was not eligible for
appointment. This is conceded by the petitioner. There cannot be
reservation of a vacancy till such time as a petitioner becomes a
major after a number of years, unless there are some specific
provisions. The very basis of compassionate appointment is to see
that the family gets immediate relief."
8. A similar view was taken by the Division Bench of this Court in
the case of Beni Lal Bamney vs. Union of India and others , reported in 2003
(1) MPLJ 342 and in the case of Riazuddin Khan vs. State of M.P. and
NEUTRAL CITATION NO. 2024:MPHC-JBP:51332
4 WP-29743-2024
others, reported in 2005(4) MPLJ 575 and in the case of Managing Director,
Madhya Pradesh Paschim Kshetra Vidyut Vitaran Co. and others vs. Ashiq
Shah and another (W.A.No.10 of 2020).
9. The Hon'ble Supreme Court has considered the aspect of delay in
approaching the Court in the case Esha Bhattacharjee vs. Managing
Committee of Raghunathpur Nafar Academy and Ors. reported in (2013) 12
SCC 649 wherein the Hon'ble Supreme Court has held as under :-
"21. From the aforesaid
authorities the principles that can
broadly be culled out are:
21.1. (i) There should be a
liberal, pragmatic, justice-oriented,
nonpedantic approach while
dealing with an application for
condonation of delay, for the
courts are not supposed to legalise
injustice but are obliged to remove
injustice.
21.2. (ii) The terms "sufficient
cause" should be understood in
their proper spirit, philosophy and
purpose regard being had to the
fact that these terms are basically
elastic and are to be applied in
NEUTRAL CITATION NO. 2024:MPHC-JBP:51332
5 WP-29743-2024
proper perspective to the obtaining
fact-situation.
21.3. (iii) Substantial justice
being paramount and pivotal the
technical considerations should not
be given undue and uncalled for
emphasis.
21.4. (iv) No presumption can
be attached to deliberate causation
of delay but, gross negligence on
the part of the counsel or litigant is
to be taken note of.
21.5. (v) Lack of bonafides
imputable to a party seeking
condonation of delay is a
significant and relevant fact.
21.6. (vi) It is to be kept in
mind that adherence to strict proof
should not affect public justice and
cause public mischief because the
courts are required to be vigilant
so that in the ultimate eventuate
there is no real failure of justice.
21.7. (vii) The concept of
NEUTRAL CITATION NO. 2024:MPHC-JBP:51332
6 WP-29743-2024
liberal approach has to encapsulate
the conception of reasonableness
and it cannot be allowed a totally
unfettered free play.
21.8. (viii) There is a distinction
between inordinate delay and a
delay of short duration or few
days, for to the former doctrine of
prejudice is attracted whereas to
the latter it may not be attracted.
That apart, the first one warrants
strict approach whereas the second
calls for a liberal delineation.
21.9. (ix) The conduct,
behaviour and attitude of a party
relating to its inaction or
negligence are relevant factors to
be taken into consideration. It is so
as the fundamental principle is that
the courts are required to weigh the
scale of balance of justice in
respect of both parties and the said
principle cannot be given a total
go-by in the name of liberal
NEUTRAL CITATION NO. 2024:MPHC-JBP:51332
7 WP-29743-2024
approach.
21.10. (x) If the explanation
offered is concocted or the grounds
urged in the application are
fanciful, the courts should be
vigilant not to expose the other
side unnecessarily to face such a
litigation.
21.11. (xi) It is to be borne in
mind that no one gets away with
fraud, misrepresentation or
interpolation by taking recourse to
the technicalities of law of
limitation.
21.12. (xii) The entire gamut of
facts are to be carefully scrutinised
and the approach should be based
on the paradigm of judicial
discretion which is founded on
objective reasoning and not on
individual perception.
21.13. (xiii) The State or a
public body or an entity
representing a collective cause
NEUTRAL CITATION NO. 2024:MPHC-JBP:51332
8 WP-29743-2024
should be given some acceptable
latitude.
22. To the aforesaid principles
we may add some more guidelines
taking note of the present day
scenario. They are:-
22.1. (a) An application for
condonation of delay should be
drafted with careful concern and
not in a haphazard manner
harbouring the notion that the
courts are required to condone
delay on the bedrock of the
principle that adjudication of a lis
on merits is seminal to justice
dispensation system.
22.2. (b) An application for
condonation of delay should not be
dealt with in a routine manner on
the base of individual philosophy
which is basically subjective.
22.3. (c) Though no precise
formula can be laid down regard
being had to the concept of judicial
NEUTRAL CITATION NO. 2024:MPHC-JBP:51332
9 WP-29743-2024
discretion, yet a conscious effort
for achieving consistency and
collegiality of the adjudicatory
system should be made as that is
the ultimate institutional motto.
22.4. (d) The increasing
tendency to perceive delay as a
non-serious matter and, hence,
lackadaisical propensity can be
exhibited in a nonchalant manner
requires to be curbed, of course,
within legal parameters.
10. The Hon'ble Supreme Court in the case of State of Orissa &
Anr. vs. Mamata Mohanty, (2011) 3 SCC 436 has opined as under:-
"54. This Court has consistently rejected the
contention that a petition should be
considered ignoring the delay and laches in
case the petitioner approaches the Court after
coming to know of the relief granted by the
Court in a similar case as the same cannot
furnish a proper explanation for delay and
laches. A litigant cannot wake up from deep
slumber and claim impetus from the
judgment in cases where some diligent
person had approached the Court within a
reasonable time."
11. A Division Bench of this Court in Focus Energy Ltd. (M/s) vs
Government of India, (DB) reported in I.L.R. (2011) M.P. 53 relying upon
NEUTRAL CITATION NO. 2024:MPHC-JBP:51332
10 WP-29743-2024
judgments of the Hon'ble Supreme Court has observed as under :
"10. Thus, facts stated supra leads to irresistible
conclusion that appellant is guilty of delay and laches.
Its conduct disentitles it to any relief. In New Delhi
Municipal Council v. Pan Singh and Others, AIR 2007
SC 1365 the Supreme Court has held that delay and
laches are relevant factors for exercise of equitable
jurisdiction. In Municipal Council, Ahmednagar v.
Shah Hyder Beig, (2000) 2 SCC 48 the Supreme Court
has observed that discretionary relief can be provided to
one who has not by his act or conduct given a go-bye to
his rights. Equity favours a vigilant rather than an
indolent litigant. In the State of Haryana v. Aravali
Khanij Udyog, (2008) 1 SCC 663 it has been held that
where third party rights are created, the High Court
should not interfere. Similarly, in Shiba Shankar
Mohapatra (supra) it has been held that the Court
exercising public law jurisdiction does not encourage
agitation of stale claims where the right of third parties
crystallizes in the interregnum."
12. The Hon'ble Supreme Court in the case of Karnataka Power
Corpn. Ltd. vs K. Thangappan reported in (2006) 4 SCC 322 has held as
follows:
"6. Delay or laches is one of the factors
which is to be borne in mind by the High
Court when they exercise their discretionary
powers under Article 226 of the Constitution.
In an appropriate case the High Court may
refuse to invoke its extraordinary powers if
there is such negligence or omission on the
part of the applicant to assert his right as
taken in conjunction with the lapse of time
NEUTRAL CITATION NO. 2024:MPHC-JBP:51332
11 WP-29743-2024
and other circumstances, causes prejudice to
the opposite party. Even where fundamental
right is involved the matter is still within the
discretion of the Court as pointed out in
Durga Prashad v. Chief Controller of Imports
and Exports [(1969) 1 SCC 185 : AIR 1970
SC 769] . Of course, the discretion has to be
exercised judicially and reasonably.
7. What was stated in this regard by Sir
Barnes Peacock in Lindsay Petroleum Co. v.
Prosper Armstrong Hurd [(1874) 5 PC 221 :
22 WR 492] (PC at p. 239) was approved by
this Court in Moon Mills Ltd. v. M.R. Meher
[AIR 1967 SC 1450] and Maharashtra SRTC
v. Shri Balwant Regular Motor Service
[(1969) 1 SCR 808 : AIR 1969 SC 329] . Sir
Barnes had stated:
"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
NEUTRAL CITATION NO. 2024:MPHC-JBP:51332
12 WP-29743-2024
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 of limitation, 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."
13. It is further held by the Hon'ble Supreme Court in the case of
Ashok Kumar vs District Magistrate, Basti reported in (2012) 3 SCC 311
that :-
"10. ... It is time and again, stated that a party who
has slept over his right since is not entitled to the
discretionary relief of the High Court."
NEUTRAL CITATION NO. 2024:MPHC-JBP:51332
13 WP-29743-2024
14. In the present case, admittedly, the death took place on
01.04.2008 and an application for compassionate appointment was filed on
31.01.2020 i.e. after a period of more than 11 years and 9 months from the
date of death of the employee. The petitioner and other family members have
survived for considerable period of almost 16 years from the date of death of
sole bread-earner. There is no proceedings available on record to
demonstrate that why after a lapse of almost 12 years, an application for
compassionate appointment was filed despite of the fact the the petitioner
has attained majority in the year 2013. The basic object of grant of
compassionate appointment is to overcome the sudden hardship and financial
crisis arisen to the family members of the deceased Government servant on
account of sudden death of bread earner of the family, but a direction for
considering of the application for grant of compassionate appointment after
lapse of 16 years is against the very object of the policy of compassionate
appointment. Under these circumstances, no relief can be extended to the
petitioner. The authorities have rightly considered and rejected the claim of
the petitioner.
15. The petition sans merits and is hereby dismissed. No order as to
costs.
(VISHAL MISHRA)
JUDGE
sj
