Karnataka High Court
Mubeen Sharieff vs Bangalore Development Authority on 3 April, 2017
Equivalent citations: 2017 LAB. I. C. 2939, 2017 (3) AKR 114, (2017) 3 KCCR 2520, (2017) 4 KANT LJ 326
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 3RD DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.919/2011 (S-RES)
BETWEEN:
MUBEEN SHARIEFF
S/O.LATE ABDUL SATTAR SHARIFF
AGED ABOUT 40 YEARS
PRESENTLY RESIDING AT NO.858,
KENCHAPPA GARDEN
CHAMUNDI NAGAR, R.T. NAGAR POST
BANGALORE - 560 032.
... PETITIONER
(BY SRI H.M. MURALIDHAR FOR
M/s. SREE RANGA ASSOCIATES, ADVS.)
AND:
BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK WEST
T. CHOWDAIAH ROAD,
BANGALORE - 560 020,
REPRESENTED BY ITS COMMISSIONER.
... RESPONDENT
(BY SRI K.KRISHNA, ADV.)
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THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT
IN THE NATURE OF MANDAMUS TO THE RESPONDENT TO
CONSIDER HIS APPLICATION FOR APPOINTMENT ON
COMPASSIONATE GROUNDS AND ISSUE APPOINTMENT ORDER
IN ACCORDANCE WITH RULE-6 OF THE KARNATAKA CIVIL
SERVICES (APPOINTMENT ON COMPASSIONATE GROUNDS)
RULES, 1996.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Asking for a writ in the nature of mandamus against the respondent for consideration of an application submitted for grant of appointment on compassionate grounds to the petitioner, this writ petition was filed on 07.01.2011.
2. In brief, the facts of the case are that Sri Abdul Sattar Shariff, father of the petitioner, was working as 'Head Coolie' and died in harness on 19.01.1998. Widow of the deceased made a representation on 09.02.1998 to provide appointment to the petitioner. The petitioner submitted representations on 12.10.1999, 23.01.2001, 17.05.2006, 09.02.2009, 18.01.2010 and 25.01.2010 to 3 provide the appointment. Stating that the said representations have not been considered and that the requests made by others for appointment on compassionate grounds was considered, alleging invidious discrimination, this writ petition was filed.
3. Sri H.M. Muralidhar, learned advocate contended that the application submitted by the petitioner being in compliance with Rule 5 of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 (for short, 'the Rules'), and there being fulfilment of the conditions specified in Rule 6, the respondent should have issued the order of appointment within 3 months' period. He submitted that the non consideration even after lapse of more than a decade is arbitrary. He further submitted that the sole bread-earner having died leaving behind dependent family members, the inaction is liable to be deprecated. Reliance was placed on the following decisions:
(i) (1989) 4 SCC 468:
SMT. SUSHMA GOSAIN Vs. UNION OF INDIA 4
(ii) (1998) 5 SCC 192:
DIRECTOR OF EDUCATION (SECONDARY) Vs. PUSHPENDRA KUMAR
(iii) AIR 2000 SC 1596:
BALBIR KAUR Vs. STEEL AUTHORITY OF INDIA LTD.
(iv) 2001 AIR SCW 2386:
SURYAKANT KADAM Vs. STATE OF KARNATAKA
(v) CIVIL APPEAL NO.260/2008 DATED 15.05.2015:
CANARA BANK Vs. M. MAHESH KUMAR
(vi) W.P. No.10490/2008 HC MADRAS:
V. SAMPAT Vs. DISTRICT COLLECTOR
(vii) W.P. No.527/2007 HC RAJASTHAN:
BALVINDER SINGH Vs. M.D. RSRTC, JAIPUR
4. Sri K. Krishna, learned advocate on the other hand submitted that Sri Abdul Sattar Shariff worked as a Head Coolie in the work charged post and in view of the Government Order No.DPAR/2/SLC/95 dated 23.11.1995 prohibiting appointment on compassionate grounds in respect of such personnel, the claim made has no merit. He submitted that as per the Government Order No.DPAR/2/SLC/95 dated 23.11.1995, the supernumerary post stands abolished as soon as the person vacates it, on account of retirement or for any other reason. He submitted that supernumerary post is personal to the 5 concerned servant and no appointment on compassionate grounds in respect of such post / person is permissible. He further submitted that there being intervening period of nearly two decades i.e., as of now, the petition filed for issue of writ in the nature of mandamus is liable to be rejected. He submitted that the family of the deceased having survived for nearly two decades, providing of appointment on compassionate grounds being not a matter of course, the petition should fail. Reliance was placed on the decisions in the cases of STATE OF J & K Vs.SAJAD AHMED MIR, (2006) 5 SCC 766; CHIEF COMMISSIONER OF CENTRAL EXCISE Vs. PRABHAT SINGH, (2012) 13 SCC 412.
5. Point for consideration is, whether in view of the intervening period of about nineteen years from the date of death of the petitioner's father, can a writ of mandamus be issued against the respondent to consider the claim made for providing appointment on compassionate grounds? 6
6. In case an employee dies in harness, under the scheme of compassionate appointment, an eligible dependent can be given a job. The object behind such an action is to provide immediate succour to the family which may suddenly find itself in dire straits as a result of death of the bread-earner. An appointment made many years after the death of an employee would be directly in conflict with Articles 14 and 16 of the Constitution. Such an appointment cannot be claimed as a matter of right. Mere death of a public servant cannot be treated as a right to get an appointment in a public office. Appointment on compassionate grounds cannot and should not be made as a matter of course. The scheme providing for such an appointment and the ratio of law laid down in such matters should be kept in view. The intervening period is also a factor and cannot be lost sight off.
7. In the case of UMESH KUMAR NAGPAL Vs. STATE OF HARYANA AND OTHERS, (1994) 4 SCC 138, Apex Court has held as follows:
7
"Compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the Rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."
(emphasis is supplied)
8. In the case of JAGADISH PRASAD Vs. STATE OF BIHAR AND ANOTHER, (1996) 1 SCC 301, Apex Court has held as follows:
"The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family."
(emphasis is supplied)
9. In the case of MANAGING DIRECTOR, MMTC LTC., NEW DELHI AND ANOTHER Vs. PRAMODA DEI ALIAS NAYAK, (1997) 11 SCC 390, Apex Court has held as follows:
"4..... As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and 8 not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment........."
(emphasis is supplied)
10. In the case of S. MOHAN Vs. GOVERNMENT OF T.N. AND ANOTHER, (1998) 9 SCC 485, Apex Court has held as follows:
"The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."
(emphasis is supplied)
11. In the case of UNION OF INDIA Vs. BHAGWAN SINGH, (1995) 6 SCC 476, Apex Court has held as follows:
"It is evident, that the facts in this case point out, that the plea for compassionate employment is not to enable the family to tide over the sudden crisis or distress which resulted as early as September 1972. At the time Ram Singh died on September 12, 1972 there were two major sons and the mother of the children who were apparently capable of meeting the needs in the family and so they did not apply for any job on compassionate grounds. For nearly 20 years, the family has pulled on, apparently without any difficulty. In this background, we are of the view that the Central Administrative Tribunal acted illegally and wholly without 9 jurisdiction in directing the Authorities to consider the case of the respondent for appointment on compassionate grounds and to provide him with an appointment, if he is found suitable......."
(emphasis is supplied)
12. In the case of HARYANA STATE ELECTRICITY BOARD Vs. NARESH TANWAR AND ANOTHER, (1996) 8 SCC 23, Apex Court has held as follows:
"9. It has been indicated in the decision of Umesh Kumar Nagpal Vs. State of Haryana, (1994) 4 SCC 138, that compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. In the other decision of this Court in Jagdish Prasad's case, it has been also indicated that the very object of appointment of dependent of deceased-employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years."
(emphasis is supplied)
13. In the case of STATE OF J & K AND OTHERS Vs. SAJAD AHMED MIR, (2006) 5 SCC 766, Apex Court has held as follows:
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"11. ......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 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 breadwinner and likelihood of the family suffering because of the set back. Once it is proved that in spite of death of breadwinner, the family survived and substantial period is over, there is no necessity to say "goodbye" to the 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."
(emphasis is supplied)
14. In the case of DIRECTOR, DEFENCE METAL RESEARCH LABORATORY AND ANOTHER VS. G.MURALI, reported in (2003) 9 SCC 247, Apex Court has held as follows:
"4. We do not find any flimsy ground or technicalities in the Tribunal's order. In fact, we find the High Court's order to be unsustainable. There has been a failure to appreciate what the Tribunal has rightly taken into account, namely, that the writ petitioner and his family had coped without the compassionate appointment for about eighteen years. There was no warrant in such circumstances for directing the writ petitioner's appointment 11 on compassionate grounds and that too with the direction to the respondents to the writ petition to create a post to accommodate him."
(emphasis is supplied)
15. In the present case, petitioner's father died on 19.01.1998 and a representation was made on 09.02.1998 to provide appointment to the petitioner. By the time this petition was filed, more than twelve years' period had elapsed. As there is intervening period of more than 12 years from the date of death of petitioner's father till the date this petition was filed and thereafter, more than 6 years having lapsed, if respondent is directed to consider the claim, it will not subserve the basic objects and purpose of the scheme to provide appointment on compassionate grounds. The family of the deceased has survived for more than nineteen years as of now and as such, there is no justification to issue the writ of mandamus.
16. The principles on which a writ of mandamus can be issued have been stated in the treatise, THE LAW OF 12 EXTRAORDINARY LEGAL REMEDIES BY F.G. FERRIS AND F.G. FERRIS, JR. as under:
" Note 196 - Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles."
17. Sri H.M. Muralidhar contended that the claim for appointment though was made without any loss of time, there being inaction by the respondent, the petitioner shall not be made to suffer. He submitted that the respondent be not permitted to take advantage of its failure in discharge of duty, that too, when the petitioner has acted bona fide by submitting several representations from 12.10.1999 up to 25.01.2010.
18. Sri K. Krishna submitted that the petitioner was notified on 16.01.2003 to produce the record. 13 Pursuant to an unofficial note, the petitioner was notified to appear on 17.01.2007 for consideration of the claim. He pointed out that the petitioner having born on 25.04.1971 is now aged about 46 years and having crossed the maximum age for appointment. He submitted that the petitioner has no case even on equitable consideration and the petition should fail.
19. Sri H.M. Muralidhar submitted that the petitioner was well within the zone of eligibility when the first representation was made on 09.02.1998 and hence, it is not open to the respondent to deny appointment to the petitioner on account of its inaction. He further submitted that the age of the petitioner should be reckoned with reference to the date on which the representation was made on 09.02.1998 and not with reference to the present date. He submitted that the petitioner is not the cause for delay in deciding of the petition for more than six years.
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20. On the date petitioner's father died, the petitioner was aged about 28 years. Application though was made on 09.02.1998, more than 19 years having elapsed thereafter, the matter is stale. Mere submission of representation or reminder does not arrest time. The petitioner having slept over his right, approached this Court after a lapse of nearly 12 years. As of now, the intervening period is about 19 years. Delay or laches is a relevant factor and the same cannot be lost sight of. Claim for appointment on compassionate grounds based on concept of equitability, if not pursued diligently, on account of passage of the long period, there is no justification to exercise the extraordinary power under Article 226 and issue writ of mandamus. The exercise of writ jurisdiction is discretionary and writ court is not bound to issue a writ merely because it is lawful to do so. In view of the laches on the part of the petitioner in not availing the legal remedy within a reasonable period after submitting the representation, there is no justification to compel the respondent at this length of time to consider the case. 15
21. In the case of PRABHAKAR Vs. JOINT DIRECTOR, SERICULTURE DEPARTMENT, (2015) 15 SCC 1, while examining the matter with reference to laches, delay and acquiescence, even where no period of limitation is provided, Apex Court has held as follows:
"38. It is now a well-recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity "delay defeats equities".
39. This principle is applied in those cases where discretionary orders of the court are claimed, such as specific performance, permanent or temporary injunction, appointment of Receiver, etc. These principles are also applied in the writ petitions filed under Articles 32 and 226 of the Constitution of India. In such cases, courts can still refuse relief where the delay on the petitioner's part has prejudiced the respondent even though the petitioner might have come to court within the period prescribed by the Limitation Act."
(emphasis is supplied) 16
22. In the case of SHREEJITH L. Vs. DEPUTY DIRECTOR (EDUCATION) KERALA, (2012) 7 SCC 418, Apex Court has held that delay assumes greater significance keeping in view the fact that the applicant got married and settled with her husband comprising a separate family and the appointment of such person may not in that view lead to any financial help for other members of the family left behind by the deceased. Noticing that the period is more than 14 years, was held to be fatal for the prayer for compassionate appointment.
23. In the present case, if the family of the deceased was put in dire straits on account of sudden death of the bread-earner and was in urgent need of employment, the petitioner could not have remained satisfied with the submission of the application for providing appointment and followed by representations. If within a reasonable period lawful action was not taken by the respondent, the petitioner should have availed legal remedy. There is unexplained delay and also laches. It is 17 on account of the delay in seeking equitable remedy, the writ of mandamus cannot be issued.
24. The petitioner and his family has coped without compassionate appointment for about 19 years. The petitioner is married and has children. The petitioner's father, if was alive, would have attained the age of superannuation long ago. Hence, there is no justification to issue writ of mandamus to the respondent to consider the claim of the petitioner. If there was any discrimination by the respondent in the matter of providing appointment i.e., overlooking the petitioner's claim and providing appointment to other persons, the petitioner should have sought remedy as and when any such appointment was made and not remain contended with the submission of repeated representations.
25. In an almost identical situation, in the case of SMT. SULOCHANA DUTTARGI Vs. THE MANAGER, NATIONAL INSURANCE CO. LTD., AND OTHERS, reported in ILR 2010 KAR 4041, it was held as follows:
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"8. Indisputably, in the case on hand, the date of death of employee was 08.04.1994 on which the date, the son of the deceased (Girishankar) was aged about five years and after a long lapse of time viz., nearly 16 years, the petitioner is before this Court, seeking writ of mandamus to direct the respondents to consider her application for appointment of her son Sri. Girishankar on compassionate grounds. The respondents have sent a communication as at Annexure-J dated 08.07.2004. Thereafter, the petitioner has taken another six years to file this writ petition. As such, the writ petition is hopelessly barred by delay and laches. Keeping in view the object and purpose of providing appointment on compassionate ground, the long lapse of 16 years and the dictum laid down by the Hon'ble Supreme Court in the catena of decisions referred supra, the prayer of the petitioner cannot be granted."
In view of the foregoing discussion, there is no justification to issue a direction as against the respondent to consider the claim made by the petitioner to provide appointment on compassionate grounds. Consequently, petition is dismissed with no order as to costs.
Sd/-
JUDGE sac*