Rajasthan High Court - Jaipur
Suresh Kumari vs State Revenue Department Ors on 22 March, 2022
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 15264/2016
Suresh Kumari W/o Late Shri Virendra Kumar, By Caste
Meghwal, Village Baldevbas, Tehsil Kishangarh, District-Alwar,
Rajasthan
----Petitioner
Versus
1. State Of Rajasthan Through Principal Secretary Revenue
Department, Secretariat, Jaipur
2. The District Collector, Alwar
3. The Tehsildar, Kishangarhbas, District-Alwar
----Respondents
For Petitioner(s) : Mr. Dileep Singh Jadaun For Respondent(s) : Mr. Pradeep Kalwania HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Order 22/03/2022 The instant petition has been filed by the petitioner with following prayer:
"A. Issue appropriate writ in the matter of Mandamus of any other writ order or direction commanding the respondents to quash and set aside the impugned order dated 11.9.2002 (Annexure-4) passed by Tehsildar Kishangarhbas, District-Alwar.
B. Issue appropriate writ in the matter of Mandamus or any other writ order or direction commanding the respondents to quash and set aside the order dated 25.4.2011 (Annexure-9) passed by District Collector Alwar.
C. Issue appropriate writ order or direction to the respondents to provide compassionate appointment I place of her deceased husband in term of Rajasthan Compassionate Appointment of dependants (Downloaded on 24/03/2022 at 08:46:10 PM) (2 of 8) [CW-15264/2016] of deceased Government service rules 1996.
D. Issue appropriate writ in the matter of Mandamus or any other writ order or direction commanding the respondents to release Family pension to the petitioner in accordance with the rules.
E. Any other relief as this Hon'ble Court may deem fit and proper be also passed in favour of the petitioner."
Learned counsel for the petitioner submits that the husband of the petitioner was appointed as Class IV employee in the year 1992. It is the case of the petitioner that her husband left Alwar on 02.06.1996 for departing towards Mumbai without giving any information to the family members. Thereafter, his whereabouts were not known to anyone in the family and also in the society. When whereabouts of her husband were not known continuously for a period of 7 years, she approached this Court for getting compassionate appointment as there is a presumption under the law that if the whereabouts of any person are not known continuously for seven years, the said person might have expired.
Petitioner filed SB Civil Writ Petition No.7073/2003 and same was decided by this Court directing the petitioner to file a representation before the respondents-authorities and respondents were directed to pass a reasoned order within a period of two months in the light of Kaushalendra Singh Naruka Vs. The State of Rajasthan and anr. In SB Civil Writ Petition No.3313/1996 reported in 2000 (1) WLC (Raj.) 723 and in MP State Co-operative Marketing Federation Vs. Aruma Pyasi reported in 2004(1) SCT 493.
In pursuance of the said direction, the petitioner submitted a representation before the authorities but District Collector, Alwar (Downloaded on 24/03/2022 at 08:46:10 PM) (3 of 8) [CW-15264/2016] disposed of the representation of the petitioner on 19.08.2010 directing her to get declaration from the competent Court of law with regard to death of her husband. Prior to such observation made by the District Collector, Alwar, the petitioner filed a civil suit i.e. Civil Suit No.35/2009 in the year 2009 itself and she got declaration in this regard from the Court of Civil Judge, Junior Division, Kishangarhbas, District Alwar and a decree was passed by the Civil Judge, Junior Division that her husband met with civil death.
On the basis of said declaration, the petitioner again approached to the office of District Collector, Alwar for getting compassionate appointment. This time, her representation was rejected by the District Collector, Alwar by saying that the services of her husband was terminated, hence, she is not entitled to get compassionate appointment. The case of the petitioner is that she challenged the said order before this Court by way of filing SB Civil Writ Petition No. 11797/2011, but the said petition was withdrawn by the petitioner with liberty to file fresh petition vide order dated 26.09.2016.
After withdrawal of the aforesaid petition, now the petitioner has filed this petition challenging the termination order dated 11.09.2002 with a prayer to quash and set aside the same and some appropriate orders be issued directing the respondents to grant compassionate appointment to the petitioner.
Per contra, learned counsel for the respondent opposed the submissions made by counsel for the petitioner and submits that the husband of the petitioner was absent from his duties since 1996 and after holding an inquiry, respondents terminated his services vide order dated 11.09.2002. He further submits that the (Downloaded on 24/03/2022 at 08:46:10 PM) (4 of 8) [CW-15264/2016] order of termination was well within the knowledge of the petitioner when his representation was dismissed by the District Collector, Alwar on 19.08.2010, but the termination order was not challenged by the petitioner well within time. He further submits that the petitioner is not entitled to get compassionate appointment because the husband of the petitioner was not in service at the time of his death as his services were already terminated. He further submits that assuming for a moment that the husband of the petitioner was missing since 1996, and as per the provisions of Indian Evidence Act, after seven years a person is treated as dead and that year comes in the year 2003. After the year 2003, more than 18 years have been passed, so compassionate appointment cannot be claimed as a matter of right as the object of compassionate appointment is provided as immediate relief to the family of the deceased. Hence, the petitioner is not entitled to claim the compassionate appointment after a passage of long time since her husband has gone missing since 1996.
In support of his contentions, counsel for respondent placed reliance on a judgment of Hon'ble Supreme Court in the case of "Central Coalfields Limited & Ors. Vs. Smt. Parden Oraon" in Civil Appeal No.897/202.
Heard. Considered.
It is not in dispute that the husband of the petitioner was missing since 02.06.1996. When husband of the petitioner was not reported on duty continuously for seven years, respondents conducted an inquiry and came to the conclusion that the employee was absent from duty and a decision was taken in the year 2001 for terminating his services. It appears that the (Downloaded on 24/03/2022 at 08:46:10 PM) (5 of 8) [CW-15264/2016] petitioner was not aware about the impugned order of termination of the husband of the petitioner and in ignorance of such fact, she straightaway approached this Court by way of filing SB Civil Writ Petition No.7073/2003 for getting compassionate appointment in the light of judgments passed in Kaushalendra Singh Naruka (supra) and MP State Co-operative Marketing Federation (supra), but this Court disposed of the said petition granting liberty to the petitioner to file a representation before the authorities. In pursuance of the said direction, the petitioner filed a detailed representation before the authorities and the same was decided by the District Collector, Alwar on 19.08.2010 by observing that the services of the husband of the petitioner have already been terminated on 11.09.2002 by the respondents under Rule 86(3) of the Rajasthan Service Rules and under Rule 16(2) of the Rajasthan Civil Services Rules (Classification Control Rules) 1956 by treated him as wilful absent from 01.06.1996.
At the same time, the petitioner was directed to get a declaration from the competent Court about civil death of her husband. Prior to passing of such observation by the District Collector, Alwar, the petitioner approached the Civil Court by way of filing a Civil Suit for getting declaration about civil death of her husband and vide judgment and order dated 01.11.2010, the Civil Judge, Kishangarhbas, has passed a decree in this regard.
After getting the said decree, the petitioner again approached the District Collector for getting compassionate appointment and again her representation was rejected by the District Collector, Alwar vide order dated 25.04.2011 by observing that the services of the husband of the petitioner were terminated in the year 2002, hence, she is not entitled to get compassionate (Downloaded on 24/03/2022 at 08:46:10 PM) (6 of 8) [CW-15264/2016] appointment. Against the said order, again the petitioner approached this Court by way of filing SB Civil Writ Petition No. 11797/2011 and the said writ petition was withdrawn with liberty to file fresh and thereafter, instant writ petition has been filed by the petitioner challenging the validity of the impugned order dated 11.09.2002 passed by the Tehsildar, Kishangarhbas, District Alwar by which the services of the petitioner were terminated by treated him as absent from duty and apart from above, the petitioner has also challenged the order dated 25.04.2011 by which the respondents refused to grant compassionate appointment to the petitioner.
It is a settled position of law that inordinate delay in filing the writ petition after a lapse of long time, always affects the right of the person who challenges the same. The argument of the counsel for the petitioner cannot be believed that the petitioner was not aware about the termination order of her husband till the date of filing SB Civil Writ Petition No. 11797/2011 and during the pendency of the that petition, for the first time, the petitioner came to know about the impugned order dated 11.09.2002 when the respondents submitted their reply. Such argument of counsel for the petitioner is not tenable for the reason that when her first representation was decided by the District Collector Alwar on 19.08.2010, it was specifically mentioned in the order itself that the services of the husband of the petitioner were terminated on 11.09.2002 and despite the fact that petitioner kept mum and not even bothered to challenge the said order when the earlier SB Civil Writ Petition No. 11797/2011 was submitted.
It would be apposite to refer to the case of the Apex Court in State of Jammu and Kashmir Vs. R.K. Zalpuri and Ors., (2015) 15 (Downloaded on 24/03/2022 at 08:46:10 PM) (7 of 8) [CW-15264/2016] SCC 602 wherein a writ petition challenging the dismissal order was filed after six years. The Apex Court categorically held that delay in approaching High Court under Article 226 was fatal. The Court held thus:
"In the case at hand, the employee was dismissed from service in the year 1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ court."
So far as, claim of the petitioner for getting compassionate appointment is concerned, such claim cannot be entertained now after a lapse of 18 years as the object of compassionate appointment is to provide immediate relief to the family members of the deceased-employee. Thus, the petitioner is not entitled to get compassionate appointment after a passage of long time since her husband gone missing.
Time and again, the Hon'ble Apex Court has held that compassionate appointment cannot be claimed as a matter of right as the compassionate appointment is made to enable the family to tide over the crisis which is caused as a result of death of an employee while in harness. The essence of the claim lies in the immediacy of the need. This view has been taken by the Hon'ble Supreme Court in the case of Punjab State Power Corporation Ltd. & Ors. Vs. Nirvan Singh, reported in 2019(6) SCC 774, Indian Bank & Ors, Vs. Promila & Anr. Reported in 2020 (2) SCC 729 and it has also been held that though the Court has sympathy with the family members of the deceased, who face the death of the deceased, but sympathy alone cannot be given remedy to such family members and it is not for the Courts to substitute a scheme (Downloaded on 24/03/2022 at 08:46:10 PM) (8 of 8) [CW-15264/2016] to add or subtract from the terms thereof in exercise of judicial review.
Taking into consideration the material available on record and applying the law laid down by the Hon'ble Apex Court in the judgments referred above in the foregoing paras, this Court is of the considered view that the contentions put forward by counsel for the petitioner, do not carry any merit. Thus, this Court is not able to accept the claim of the petitioner.
In the result, the writ petition filed by the petitioner is found to be without any substance and accordingly stands dismissed.
Stay application and all pending applications also stand disposed of.
No order as to cost.
(ANOOP KUMAR DHAND),J HEENA GANDHI /59 (Downloaded on 24/03/2022 at 08:46:10 PM) Powered by TCPDF (www.tcpdf.org)