[Cites 41, Cited by 0]
Madhya Pradesh High Court
Mohan Singh Kushwah vs Madhya Pradesh Madhya Kshetra Vidyut ... on 23 February, 2026
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1 WP. No. 1677 of 2017
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 23rd OF FEBRUARY, 2026
WRIT PETITION No. 1677 of 2017
MOHAN SINGH KUSHWAH
Versus
MADHYA PRADESH MADHYA KSHETRA VIDYUT VITRAN COMPANY
LIMITED THR. AND OTHERS
Appearance:
Shri Gaurav Singh Bhadoria - learned counsel for petitioner.
Shri Narrotam Sharma - learned counsel for respondents.
ORDER
This petition, under Article 226 of the Constitution of India, has been
preferred by petitioner seeking following relief(s):
"It is humbly prayed that the writ petition may kindly be
allowed and the impugned order dated 08.12.2016
Annexure P/1 passed by Respondent No. 3 may kindly be
quashed and the Respondents be directed to appoint the
petitioner on the compassionate ground in the interest of
justice.
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Any other writ, order or direction as this Hon'ble Court
may deems fit in the facts and circumstances of the case
be granted. Costs be awarded."
2. Learned counsel for petitioner submits that by order dated 08.12.2016,
the claim of petitioner for compassionate appointment has been rejected by the
respondent Company by taking into account the prevailing policy issued by the
Company. It is further submitted that the father of petitioner, namely Late Shri
Govinddas Kushwah, died on 07.02.2005. He was posted as a Security Soldier
and met with an accident on 26.01.2005 while returning after attending the flag
ceremony and ultimately he succumbed to the injuries on 07.02.2005.
Thereafter, petitioner applied for compassionate appointment; however, his
claim was rejected without assigning any specific reason, merely recording a
casual finding that his case was not covered under the policy of compassionate
appointment issued by the respondent Company. It is further submitted that by
a non-speaking and unreasoned order dated 08.12.2016, the representation of
the petitioner has been rejected. It is further submitted that when an employee
leaves his house to perform his duties and until he returns home after
completion of such duties, the intervening period i.e. the time taken to reach the
place of duty and to return home after discharge of duty ought to be treated as
part of duty hours. In the present case, an FIR was lodged in which the time of
the accident is mentioned as 10:00 A.M. It is clarified that the father of
petitioner met with the accident on 26.01.2005 after attending the flag
ceremony. Learned counsel for the petitioner has placed reliance upon the
judgment rendered by the Hon'ble Supreme Court in the case of Daivshala and
Others v. Oriental Insurance Company Ltd., reported in 2025 Supreme
(Online) (SC) 10513.
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3. Per contra, learned counsel for respondent/State submits that as per the
policy of compassionate appointment, the dependents of personnel who died in
harness between 15.11.2000 and 10.04.2012 shall be considered for
compassionate appointment only if the personnel expired on account of an
accident or assault caused during the course of their duties. It is further
submitted that on the date of death of the petitioner's father, there was no
policy of compassionate appointment in the Board and the cut-off date of
10.04.2012 was fixed because prior to that date, the employees had not been
finally absorbed in the Company. It is further submitted that the father of the
petitioner expired on 07.02.2005 and his death occurred on account of a road
accident. It is further submitted that the residence of father of petitioner was at
Village Budhera, which is located on Seondha Road. However, as per the FIR,
the incident occurred near Pitambara Crusher, about 8 km from Police Station
Civil Lines on Bhander Road which is in a totally different direction from
Seondha Road. It is further submitted that the story projected by the petitioner,
namely that the deceased was returning home after attending the Flag Hoisting
ceremony held in Datia City, is wholly incorrect. It is further submitted that the
death or injury of an employee in a road accident while he is on the way, even
if he is travelling to or from his workplace, cannot be said to be an accident
arising out of and in the course of employment.
4. Heard the learned counsel for the parties and perused the record.
5. Perusal of record reveals that under the policy of compassionate
appointment, only those dependents are entitled to consideration whose family
member died due to an accident or assault arising out of and in the course of
employment. In the present case, the petitioner's father died on 07.02.2005 in a
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road accident, which cannot be treated as having occurred during the course of
duty. The FIR indicates that the accident took place on Bhander Road, whereas
his residence was on Seondha Road, thereby creating doubt about the claim that
he was returning home directly after official duty. Therefore, it cannot be held
that the death occurred in the course of employment and consequently, the
petitioner's case does not fall within the ambit of the compassionate
appointment policy. The case cited by learned counsel for petitioner is not
applicable to the present case, as it pertains to the Employees' Compensation
Act, 1923 and is not related to compassionate appointment.
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
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
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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 Scheme Decision of this
on the date of which came into Court
death of the force after death
Government
servant
State Bank of The Scheme of the The 1996 Scheme Rejecting the
India v. Jaspal year 1996, which was subsequently claim of the wife
Kaur (2007) 9 made the financial modified by policy of the deceased
SCC 571 [a two condition of the issued in 2005, employee, this
member Bench] family as the main which laid down Court held that the
criterion, was in few parameters for application of the
force, on the date determining dependant made in
of death of the penury. One of the the year 2000,
employee in the parameters was to after the death of
year 1999. see if the income the employee in
of the family had the year 1999,
been reduced to cannot be decided
less than 60% of on the basis of a
the salary drawn Scheme which
by the employee at came into force in
the time of death. the year 2005.
Therefore, the
wife of the
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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 1.10.2004 from 04.08.2005 a that the
Kumar (2010) 11 and the new Scheme for application could
SCC 661 [a two applications for payment of be considered only
member Bench] compassionate exgratia lump-sum under the new
appointment were was introduced in Scheme, as it
made on the place of the contained a
6.06.2005 and old Scheme. The specific provision
14.06.2005. On new Scheme relating to pending
the date of death contained a applications.
and on the date of provision to the
the applications, a effect that all
Scheme known as applications
compassionate pending under the
appointment old Scheme will
Scheme was in be dealt with only
force. in accordance with
the new Scheme.
MGB Gramin The employee However, a new This Court took
Bank v. Chakrawa died on Scheme dated the view that the
rti Singh (2014) 19.04.2006 and 12.06.2006 came new Scheme alone
13 SCC 583 [a the application for into force on would apply as it
two member appointment made 6.10.2006, contained a
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Bench] on 12.05.2006. A providing only for specific provision
scheme for ex gratia payment which mandated
appointment on instead of all pending
compassionate compassionate applications to be
grounds was in appointment. considered under
force on that date. the new Scheme.
Canara The employee The 1993 Scheme This Court
Bank v. M. died on was substituted by dismissed the
Mahesh 10.10.1998 and a Scheme for appeals filed by
Kumar (2015) 7 the application for payment of ex the Bank on
SCC 412 [a two appointment on gratia in the year account of two
member Bench] compassionate 2005. But by the important
grounds, was time the 2005 distinguishing
made under the Scheme was features,
Scheme of the issued, the namely, (i) that the
year 1993. It was claimant had application for
rejected on already appointment on
30.06.1999. The approached the compassionate
1993 Scheme was High Court of grounds was
known as "Dying Kerala by way of rejected in the
in Harness writ petition and year 1999 and the
Scheme." succeeded before rejection order
the learned Single was set aside by
Judge vide a the High Court in
Judgment dated the year 2003
30.05.2003. The much before the
Judgment was compassionate
upheld by the appointment
Division Bench in Scheme was
the year 2006 and substituted by an
the matter landed ex gratia Scheme
up before this in year 2005;
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Court thereafter. and (ii) that in the
In other words, the year 2014, the
Scheme of the original scheme
year 2005 came for appointment
into on compassionate
force : (i) after the grounds stood
rejection of the revived, when the
application for civil appeals were
compassionate decided.
appointment 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 the
Bank v. Promila ( died on was brought into decision
2020) 2 SCC 15.01.2004 and force on in Canara
729 [a two the application for 24.07.2004 after Bank v. M.
member Bench] appointment was the death of the Mahesh Kumar,
made by his minor employee. Under this Court held
son on this Scheme an ex that the case of the
24.01.2004. On gratia claimant cannot be
these dates, a compensation was examined in the
circular bearing provided for, context of the
No. 56/79 dated subject to certain subsequent
4.04.1979 which conditions. After Scheme and that
contained a the coming into since the family
Scheme for force of the new had taken full
appointment on Scheme, the gratuity under the
compassionate claimant was old scheme, they
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grounds was in directed by the were not entitled
force. But the bank to submit a to seek
Scheme provided fresh application compassionate
for appointment, under the new appointment even
only for those who Scheme. The under the old
do not opt for claimant did not Scheme.
payment of apply under the
gratuity for the new Scheme, as he
full term of was interested
service of only in
employee who compassionate
died in harness. appointment and
not monetary
benefit.
N.C. Under the existing But by virtue of an After taking note
Santosh v. State of Scheme referable amendment to the of a reference
Karnataka (2020) to Rule 5 of the proviso to Rule 5, made in State
7 SCC 617 (a Karnataka Civil a minor dependant Bank of
three Member Services should apply India v. Sheo
Bench) (Appointment on within one year Shankar Tewari to
Compassionate from the date of a larger bench, a
Grounds) Rules, death of the three member
1999, a minor Government Bench of this
dependant of a servant and must Court held in N.C.
deceased have attained the Santosh that the
Government age of 18 years on norms prevailing
employee may the date of making on the date of
apply within one the application. consideration of
year from the date Applying the the application
of attaining amended should be the basis
majority. provisions, the for consideration
appointment of of the claim for
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persons already compassionate
made on appointment. The
compassionate Bench further held
grounds, were that the dependant
cancelled by the of a government
appointing employee, in the
authority which absence of any
led to the vested right
challenge before accruing on the
this Court. 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
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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,
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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
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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.
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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 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. It is well established principle of law that the delay defeats equity.
Further more, the appointment on compassionate ground is for helping out the
dependents of the deceased employee, so that they can face the financial crisis
which may have occurred on account of loss of sole bread-winner.
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Appointment of compassionate ground is not an alternative mode of regular
source of employment. If a family of a deceased employee can survive for a
longer period, then it cannot be said that there was any immediate need for
providing appointment on compassionate ground by by-passing the regular
mode of appointment.
10. 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 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
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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 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
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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)
11. It is submitted by the Counsel for the Petitioner, that since, the petitioner
has made a representation against the rejection of his claim, therefore, the
respondents can be directed to decide his representation. Considered the
submissions made by the Counsel for the Petitioner.
12. 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
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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."
13. 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."
14. 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
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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 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.
15. 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.
16. 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 Department. Representations with incomplete particulars
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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."
17. 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."
18. 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."
19. The Supreme Court in the case of Fertilizers and Chemicals
Travancore Ltd. & Ors. Vs. Anusree K.B. reported in 2022 LiveLaw (SC)
819 has held as under:-
"9.Thus, as per the law laid down by this Court in the aforesaid
decisions, compassionate appointment is an exception to the general
rule of appointment in the public services and is in favour of the
dependents of a deceased dying in harness and leaving his family in
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penury and without any means of livelihood, and in such cases, out of
pure humanitarian consideration taking into consideration the fact
that unless some source of livelihood is provided, the family would
not be able to make both ends meet, a provision is made in the rules
to provide gainful employment to one of the dependants of the
deceased who may be eligible for such employment. The whole object
of granting compassionate employment is, thus, to enable the family
to tide over the sudden crisis. The object is not to give such family a
post much less a post held by the deceased.
9.1 Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and considering the
observations made hereinabove and the object and purpose for which
the appointment on compassionate ground is provided, the
respondent shall not be entitled to the appointment on compassionate
ground on the death of her father, who died in the year 1995. After a
period of 24 years from the death of the deceased employee, the
respondent shall not be entitled to the appointment on compassionate
ground. If such an appointment is made now and/or after a period of
14/24 years, the same shall be against the object and purpose for
which the appointment on compassionate ground is provided.
9.2 Under the circumstances, both, the learned Single Judge as well
as the Division Bench of the High Court have committed a serious
error in directing the appellants to reconsider the case of the
respondent for appointment on compassionate ground. The impugned
judgment and order passed by the High Court is unsustainable."
20. Clause 1.1(3) of Policy as amended on 13.4.2016 reads as under:-
1-1¼3½ ,sls dkfeZd ftudh e`R;q fnukad 15-11-2000 ds i'pkr
fdUrq fnukad 10-04-2012 ds iwoZ eiz- jkT; fo|qr
e.My@daiuh dk dk;Z djrs le;] vkdfLed nq?kZVuk] fo|qr
nq?kZVuk] geykojksa }kjk gR;k vFkok dk;Z djrs le; okgu
nq?kZVuk] ds dkj.k gqbZ gks] ds vkfJrksa dks dafMdk 02 ,oa 03 esa
of.kZr ik=rk dh 'krksZ ds vuqlkj vuqdaik fu;qfDr nh tk
ldrh gSA dk;Z ds nkSjku nq?kZVuk e`R;q ds izdj.kksa dks vuqdaik
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fu;qfDr gsrq lkekU; e`R;q ds izdj.kksa ds Åij izkFkfedrk nh
tk;sxh rFkk nq?kZVuk e`R;q ds vkosnuksa ij fopkj fd;s tkus ds
mijkar gh vU; izdj.kksa ij fopkj fd;k tk;sxkA nq?kZVuk e`R;q
esa e-iz- jkT; fo|qr e.My@daiuh esa dk;Z djrs le;
vkdfLed nq?kZVuk] fo|qr nq?kZVuk] geykojksa }kjk gR;k vFkok
dk;Z ds nkSjku okgu nq?kZVuk ds izdj.k 'kkfey fd;s tk;sxsaA
21. From the plain reading of aforesaid policy, it is clear that if an on duty
employee dies in a vehicular accident caused either by the vehicle of the
department or private vehicle within the territorial area of the respondents, then
his case would be covered by the policy for appointment on compassionate
ground.
22. Thus, the only question for consideration is that if an employee dies in an
accident while he was on his way to a place of employment then whether it can
be said to be an accident arising out of or in the course of employment or not?
23. The Supreme Court in the case of Malikarjuna G. Hiremath vs.
Branch Manager, Oriental Insurance Company Limited and another
reported in (2009) 13 SCC 405 has held that under Section 3(1) of Workmen's
Compensation Act, it has to be established that there was some casual
connection between the death of the workman and his employment. Any death
which has taken place in the course of employment will not amount to accident,
the death must arise out of accident.
24. The Supreme Court in the case of General Manager, B.E.S.T
Undertaking, Bombay vs. Mrs. Agnes reported in AIR 1964 SC 193 has
held that where a free transport is provided by the employer in the interest of
service and an employee dies in an accident while returning back from his
office, then it cannot be said that he had boarded the bus in exercise of his right
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as a member of the public but he had boarded the bus as belonging to a service.
Therefore, it can be said that the accident had occurred during the course of
employment.
25. However, the Supreme Court in the case of Regional Director, E.S.I.
Corporation and another vs. Francis De Costa and another reported in
(1996) 6 SCC 1 has held that unless it can be said that the employment began
as soon as he set out for the factory from his house, it cannot be said that the
injury or death was caused by an accident "arising out of and in the course of
employment". A road accident may happen any where at any time. But such
accident cannot be said to have arisen out of employment, unless it is shown
that the employee was doing something incidental to his employment.
Therefore, it was held that if an employee meets with an accident while driving
his own bicycle on the way to his place of work, it cannot be said that the
accident was reasonably incidental to the employment and was in the course of
employment and accordingly, it was held as under:
14. The point raised before us can be answered on
the basis of the principle laid down in the
aforesaid two cases. But Mr. Chacko, appearing
on behalf of the respondent has contended that
proximity of time end place is a factor to the borne
in mind. The employee was to report for duty at
4.30 P.M. The accident took place at 4.15 P.M.
only one kilometer away from the factory. In our
view this cannot be a ground for departing from
the principle laid down by the aforementioned
cases that the employment of the workman does
not commence until he has reached she place of
employment. What happens before that is not in
course of employment. It was also pointed out by
Lord Denning in the aforesaid case of R. v.
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National Insurance Commr, ex. p Michael that the
extension of the meaning of the phrase "in the
course of his employment" has taken place in some
cases but in all those cases, the workman was at
the premises where he or she worked and was
injured while on a visit to the canteen or some
other place for a break. The test of what was
"reasonably incidental" to employment, may be
extended even to cases while an employee is sent
on errand by the employer outside the factory
premises. But in such cases it must be shown that
he was doing something incidental to his
employment. There may also be cases where an
employee has to go out of his workplace in the
usual course of his employment. Latham, C.J. in
South Maitland Railways Proprietary Ltd v. James
observed that when the workmen on a hot day in
course of their employment had to go for a short
time to get some cool water to drink to enable
them to continue to work without which they could
not have otherwise continued, they were in such
cases doing something in the course of their
employment when they went out for S water. But
the case before us does not fall within the
exceptions mentioned by Lord Denning or Latham,
C.J. The case squarely comes within the
proposition of law propounded by S. Jafar Imam,
J.
26. In the policy, the word "while working for the company" have been
used. Therefore, it necessarily means that the accident must occur while the
deceased was on his duty.
27. Learned counsel for petitioner could not point out any circular issued by
the respondents or any law which provides that coming from the place of
employment would also amount to "while working for the company".
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28. It is next contended by the counsel for the petitioner that as per clause
1.1(3), preference has to be given to the dependents of the deceased employee
who died an accidental death over and above the cases of normal death.
Therefore, the petitioner is entitled for compassionate appointment as her father
died an accidental death.
29. In order to claim preference over and above the cases of normal death,
the petitioner has to prove that her father had died an accidental death. As
already pointed out, the petitioner could not prove that her father had died in an
accident which took place while he was working for the Company/on duty.
30. Since, the petitioner has approached this Court after 11 years of death of
his father and the application submitted by petitioner has already been rejected
by the respondent by order dated 11.11.2016 and the aforesaid rejection order
has not been challenged by petitioner. The appointment on compassionate
ground is not an alternative mode of direct recruitment but it is a speedy
remedy to over come the consequences of untimely death of their breadwinner,
coupled with the fact that the petitioner has not challenged the rejection of his
claim for appointment on compassionate ground, this Court is of the considered
opinion that no case is made out for entertaining this writ petition.
31. Accordingly, the petition fails and is hereby dismissed.
32. Pending interlocutory applications, if any, are also disposed of.
(ANAND SINGH BAHRAWAT)
JUDGE
Ahmad
