Rajendra Singh Jeena vs State Of Uttarakhand & Others
2021 Latest Caselaw 2322 UK

           IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
                     Writ Petition (S/S) No. 797 of 2021

Rajendra Singh Jeena                                         .......Petitioner

                                            Vs.

State of Uttarakhand & others                                .....Respondents

Mr. Dharmendra Barthwal, Advocate, for the petitioner. Mr. P.C. Bisht, Addl. C.S.C. for the State of Uttarakhand.

Hon'ble Sharad Kumar Sharma, J (Oral)

(Via video conferencing).

The brief facts, which are involved consideration in the present writ petition, are that admittedly the late father of the petitioner, who was appointed with the respondents, as a daily wager, and he worked with the respondents in the said capacity from 1970 till 2009.

2. The contention of the petitioner in the present writ petition is that while rendering his services in the said capacity, he met with the sad demise on 12.07.2009, and at the time of his death, the petitioner was minor. The petitioner submits that on attainment of the age of majority, he had filed a writ petition before this Court being WPSS No.1586 of 2015, "Rajendra Singh Jeena Vs. State of Uttarakhand & others". The same was disposed of by the Coordinate Bench of this Court by the judgment dated 05.08.2015, whereby the Coordinate Bench of this Court, has issued the directions to the respondents to decide the representation of the petitioner as expeditiously as possible, but not later than six weeks from the date of the service of the certified copy of the said order.

3. The contention of the petitioner before this Court is that while taking the decision, a recommendation was already made in

favour of the petitioner by the Chief Conservator of Forest, by virtue of an order of 17.12.2016, directing the DFO, Tarai, Forest Division, to take an appropriate decision, in the matter of the petitioner in the light of the judgment rendered on 05.08.2015.

4. In fact, if the pleadings of the writ petition, are taken into consideration, it reveals that after the passing of the order of 05.08.2015, and till the recommendation was made by the Chief Conservator of Forest on 27.12.2016, if at all there was non- compliance of the judgment dated 05.08.2015 and the representation was not decided, as directed, the remedy open for the petitioner was to file a contempt petition seeking its enforcement. The petitioner sat over it, and for the first time, he had filed a representation on 24.09.2020. Meaning thereby, much after the lapse of period of limitation, as provided under Section 20 of the Contempt of Court's Act, to be determined from date of the judgment dated 05.08.2015.

5. In fact paragraph No.7 of the writ petition, it appears that the petitioner continued to represent his case, but the same was not considered. Hence, he has filed the second writ petition yet again praying for a writ of mandamus to the respondents to grant a compassionate appointment to the petitioner, on the death of his father as back as on 12.07.2009.

6. These arguments extended by the learned counsel for the petitioner, are not acceptable by this Court for the reason being that if the proviso to Rule 5 of the Dying in Harness Rules, is taken into consideration, it contemplates that the application for grant of compassionate appointment has to be made within five years from the date of death. However, the period under the proviso, it makes it extendable on the direction of the State, depending upon the circumstances of each case. Rule 5 of the Dying in Harness Rules reads as under:-

"5. Recruitment of a member of the family of the deceased. - (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased

Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules, if such person-

(i) fulfils the educational qualifications prescribed for the post,

(ii) is otherwise qualified for Government service, and

(iii) makes the application for employment within five years from the date of the death of the Government servant:

Provided that where the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.

(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death."

7. The present writ petition and the circumstances pleaded in it, cannot be a substitute to override the effect of the proviso to Rule 5 of the Rules of 1974, as well as, this writ petition now at this stage having been preferred after the death, which has taken place as back as on 12.07.2009, and the writ petition has been filed in the year 2021, it defeats the very purpose and object of the grant of compassionate appointment, which is based upon the fact that the bereaved family, who has lost his only breadwinner, an immediate reprive may be provided to the bereaved family for subsistence, which stands frustrated with the lapse of time, since death happens to be of 2009.

8. Apart from, what has been observed above, the recommendation made on 27.12.2016, in compliance of the judgment of 05.08.2015, then filing of the subsequent representations, that itself will not patch up the period of limitation as contemplated by the constitution bench judgment of the Hon'ble Apex Court which has

been reported in AIR 1970 (Supreme Court) page 470, which is extracted hereunder:-

"36. Learned counsel for the petitioners, however, says that there has been no undue delay. He says that the representations were being received by the Government all the time. But there is a limit to the time which can be considered reasonable for making representations. If the Government has turned down one representation, the making of another representation on similar lines would not enable the petitioners to explain the delay. Learned counsel for the petitioners says that the petitioners were under the impression that the Departmental Promotion Committee had held a meeting in 1948 and not on April 29, 1949, and the real true facts came to be known in 1961, when the Government mentioned these facts in their letter dated December 28, 1961. We are unable to accept this explanation. This fact has been mentioned in the minutes of the meeting of the Committee which met in February 1952 and we are unable to believe that the petitioners did not come to know all these facts till 1961. But even assuming that the petitioners came to know all these facts only in December 1961, even then there has been inordinate delay in presenting the present petition. The fact that Jaisinghani's case, 1967-2 SCR 703 = (AIR 1967 SC 1427) was pending before the High Court and later in this Court is also no excuse for the delay in presenting the present petition. In the result, the petition fails and is dismissed. There will be no order as to costs."

9. Which has laid down that merely filing of the representation for raising a claim will not grant the benefit of the limitation and the latches and the same has been reiterated in the subsequent judgments of AIR 1970 (Supreme Court), 769, which reads as under:

"6. The appellant in this case had claimed a mandamus or a direction to the respondents to issue to the appellant import licence for art silk yarn of the value of Rs.8,03,530.45. It is well known that the exchange position of this country and the policy of the Government regarding International Trade varies from year to year and it would be rather odd for this Court to direct that an import licence be granted in the year 1968 in respect of alleged defaults committed by the Government in 1959 or 1962. In these matters it is essential that persons who are aggrieved by orders of the Government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition.

7. The learned counsel for the appellant contends that this matter involved fundamental rights and this Court at least should not refuse to give relief on the ground of delay. But we are exercising our jurisdiction not under Article 32 but under Article 226, and as observed by Gajendragadkar, C.J., in the passage extracted above, even in the case of alleged breach of fundamental rights the matter must be left to the discretion of the High Court."

10. It has also been reiterated in the judgment reported in 1990 Volume 3 UPLBEC, page 1896. The relevant paragraph of the same reads as under:-

"6. In facts and the circumstances of this case, we are not satisfied with the contention of the learned counsel for the petitioners that the petitioners were diligently and bonafide pursuing their remedy through the representations, therefore, the delay and latches on their part should not be taken note of and the petitioners should be granted the relief claimed. In our opinion, the writ petition deserves to be dismissed on the ground of latches and delay. Our attention has been drawn to the ruling reported in AIR 1984 SC 1527 G.P. Doval and others Vs. Chief Secretary Government of U.P. and others, and it has been contended that after 12 years their Lordships of the Supreme Court granted relief to the petitioners, therefore, the delay and latches on the part of the petitioners in the present case should not stand in the way of the petitioners getting the relief clamed. The facts and the circumstances involved in the reported ruling are quite different. In the reported ruling the respondents had not finalized the seniority list for a period of more than 12 years, therefore, their Lordships of the Supreme Court had granted relief to the petitioners. Whereas in the present case the select list was modified in the year 1980 and the order of the year 1980 has not been properly challenged even as yet and no relief has been claimed for quashing that order, therefore, we think that the petitioner are guilty of latches and they cannot derive any benefit out of the ruling referred to on their behalf. It would be necessary to mention the relevant decision of their Lordships in AIR 1970 SC 470, Ravindra Nath Bosh and others V. Union of India and others, as well as the decision reported in the same volume at P.769 Durga Prasad V. Chief Controller of Imports and Exports and others, we think that the petitioners in the present case are not entitled to the relief claimed on the ground of latched on their part.

7. Rule 12 (4) of Allahabad High Court Officers and staff (Conditions of Service and Conduct) Rules 1976 provided as below:

"(4) The merit list shall be prepared on the basis of the marks obtained in the written examination. The list shall hold good for three years or until next selection which ever is earlier."

11. In these circumstances, I am of the view that apart from the fact that this writ petition is barred by Rule 5 and proviso contained under the Dying in Harness Rules, since being a second writ petition in succession, and much after the death of the deceased employee in 2009, seeking a compassionate appointment now in 2021, is not sustainable, and hence the writ petition lacks merit and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 09.07.2021 NR/