Madhya Pradesh High Court
Parmanand Sharma vs The State Of Madhya Pradesh on 6 October, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P. No.6563/2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 06th OF OCTOBER, 2023
WRIT PETITION No.6563 of 2015
BETWEEN:-
PARMANAND SHARMA S/O LATE SHRI
CHHIDAMI LAL SHARMA, AGED ABOUT 25
YEARS, R/O BEHIND COMMUNITY HALL IN THE
HOUSE OF SHRI M.P. GUPTA, KATRA,
ADHARTAL, DISTRICT JABALPUR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ATUL KUMAR SHUKLA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH THE SECRETARY, GENERAL
ADMINISTRATION DEPARTMENT,
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
2. SUPERINTENDANT OF POLICE, JABALPUR
(MADHYA PRADESH)
3. DIRECTOR GENERAL OF POLICE, BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MOHAN SAUSARKAR - GOVERNMENT ADVOCATE)
.........................................................................................................
This petition coming on for admission this day, the court passed the
following:
ORDER
This petition under Article 226 of Constitution of India has been filed seeking following reliefs:-
7.1 To summon the entire material records 2 W.P. No.6563/2015 pertaining to the instant case of the petitioner from the respondents for its kind perusal. 7.2 To set aside the Impugned order dated 12/8/2014 (Annexure P-1) passed in Case no.
Kramank-Police Adhikshak/Jabalpur/ Sthapana/ 1211/2014 passed by the Respondent No.2 and to direct the respondents to give appointment to the petitioner from the date of his application with all consequential benefits resulting therefrom. 7.3 Cost of the petition be awarded to the petitioner.
7.4 Any other suitable relief deemed fit in the facts and circumstances of the case may also kindly be granted to the petitioner along with the cost of petition, to meet the ends of justice.
2. It is submitted by counsel for petitioner that his father Shri Chhidami Lal Sharma died in harness on 08/06/1996. Accordingly, he moved an application on 28/01/2014 for grant of appointment on compassionate ground.
3. Respondents by order dated 12/08/2014 have rejected the claim of petitioner on the ground that as per policy for appointment on compassionate ground dated 18/08/2008, claim can be considered within a period of 7 years and in case if aspirant attains majority after period of 7 years from the date of death of deceased employee, then he shall not be entitled for appointment on compassionate ground and further it has been provided that the claim can be considered only if vacant post is available within a period of 7 years from the date of death of employee. Since 7 years have already elapsed from the date of death of father of petitioner, therefore he is not entitled for appointment on compassionate ground.
4. It is submitted by counsel for petitioner that mother of petitioner is second wife of late employee Chhidami Lal Sharma. Mother of 3 W.P. No.6563/2015 petitioner filed a Civil Suit in the year 1999 for declaration that she is the legally wedded wife of Chhidami Lal Sharma. Civil Suit was dismissed by judgment and decree dated 11/08/2000, Civil Appeal was dismissed by judgment and decree dated 04/01/2001 and Second Appeal No.338/2001 was dismissed by judgment and decree dated 06/09/2005. Mother of petitioner was also tried for murder of Chhidami Lal Sharma and subsequently she was acquitted. It is submitted that Late Shri Chhidami Lal Sharma was blessed with one daughter namely, namely Arti Sharma from his first wife whereas he was blessed with three children namely Parmanand Sharma - petitioner, Somnath Sharma and Ravishankar Sharma from his second wife Smt. Pushpa. All four legal representatives of late Shri Chhidami Lal Sharma filed an application for grant of succession certificate which was allowed by order dated 16/07/2010. Thereafter, Smt. Arti Sharma filed a suit for declaration that first wife of late Shri Chhidami Lal Sharma has died a civil death which was decreed by judgment and decree dated 19/12/2013 and only thereafter petitioner moved an application for grant of appointment on compassionate ground. It is submitted that rejection of claim of petitioner for appointment on compassionate ground is bad in law.
5. Per contra, petition is vehemently opposed by counsel for the State and it is submitted that claim of petitioner has been rightly rejected.
6. Heard learned counsel for the parties.
7. Undisputedly, late Shri Chhidami Lal Sharma died in the year 1996 and the application for appointment on compassionate ground was filed on 28/01/2014, i.e. after 18 years of death of father of petitioner. Mother of petitioner had filed a suit for declaration that she is the legally wedded wife of late Shri Chhidami Lal Sharma but the said suit was 4 W.P. No.6563/2015 dismissed and even second appeal was dismissed by order dated 06/09/2005. Thus, it is clear that mother of petitioner was not the legally wedded wife of late Shri Chhidami Lal Sharma.
8. The claim for appointment on compassionate ground has been rejected on the ground that as per the policy dated 18/08/2008 claim can be considered only within a period of 7 years and since period of 7 years has elapsed, therefore petitioner cannot be granted appointment on compassionate ground.
9. The next question for consideration is as to whether the policy which was in force on the date of consideration of application for compassionate appointment is relevant or the policy which was in force on the date of death of employee is relevant.
10. The Supreme Court in the case of Indian Bank v. Promila, reported in (2020) 2 SCC 729 has held that the policy for appointment on compassionate ground, which was in force on the date of death of the employee, is the relevant policy and has further 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."5 W.P. No.6563/2015
11. 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 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 Decision of this on the date of Scheme which Court death of the came into force Government after death servant State Bank of The Scheme of The 1996 Rejecting the India v. Jaspal the year 1996, Scheme was claim of the Kaur (2007) 9 which made the subsequently wife of the SCC 571 [a two financial modified by deceased member Bench] condition of the policy issued in employee, this family as the 2005, which laid Court held that main criterion, down few the application was in force, on parameters for of the dependant the date of death determining made in the year of the employee penury. One of 2000, after the in the year 1999. the parameters death of the was to see if the employee in the income of the year 1999, family had been cannot be 6 W.P. No.6563/2015 reduced to less decided on the than 60% of the basis of a salary drawn by Scheme which the employee at came into force the time of in the year 2005.
death.
Therefore, the
wife of the
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 from 04.08.2005 that the Kumar (2010) 1.10.2004 and a new Scheme application 11 SCC 661 [a the applications for payment of could be two member for exgratia lump- considered only Bench] compassionate sum was under the new appointment introduced in the Scheme, as it were made on place of the old contained a 6.06.2005 and Scheme. The specific 14.06.2005. On new Scheme provision the date of death contained a relating to and on the date provision to the pending of the effect that all applications.
applications, a applications Scheme known pending under as the old Scheme compassionate will be dealt appointment with only in Scheme was in accordance with force. the new Scheme.
MGB Gramin The employee However, a new This Court took 7 W.P. No.6563/2015 Bank v. Chakra died on Scheme dated the view that the warti 19.04.2006 and 12.06.2006 new Scheme Singh (2014) 13 the application came into force alone would SCC 583 [a two for appointment on 6.10.2006, apply as it member Bench] made on providing only contained a 12.05.2006. A for ex gratia specific scheme for payment instead provision which appointment on of mandated all compassionate compassionate pending grounds was in appointment. applications to force on that be considered date. under the new Scheme.
Canara The employee The 1993 This Court Bank v. M. died on Scheme was dismissed the Mahesh 10.10.1998 and substituted by a appeals filed by Kumar (2015) 7 the application Scheme for the Bank on SCC 412 [a two for appointment payment of ex account of two member Bench] on gratia in the year important compassionate 2005. But by the distinguishing grounds, was time the 2005 features, made under the Scheme was namely, (i) that Scheme of the issued, the the application year 1993. It claimant had for appointment was rejected on already on 30.06.1999. The approached the compassionate 1993 Scheme High Court of grounds was was known as Kerala by way rejected in the "Dying in of writ petition year 1999 and Harness and succeeded the rejection Scheme." before the order was set learned Single aside by the Judge vide a High Court in Judgment dated the year 2003 30.05.2003. The much before the Judgment was compassionate upheld by the appointment Division Bench Scheme was in the year 2006 substituted by an and the matter ex gratia 8 W.P. No.6563/2015 landed up before Scheme in year this Court 2005;
thereafter. In and (ii) that in
other words, the the year 2014,
Scheme of the the original
year 2005 came scheme for
into force appointment on
: (i) after the compassionate
rejection of the grounds stood
application for revived, when
compassionate the civil appeals
appointment were decided.
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
Bank v. Promila died on was brought into the decision
(2020) 2 SCC 15.01.2004 and force on in Canara
729 [a two the application 24.07.2004 after Bank v. M.
member Bench] for appointment the death of the Mahesh Kumar, was made by his employee. this Court held minor son on Under this that the case of 24.01.2004. On Scheme an ex the claimant these dates, a gratia cannot be circular bearing compensation examined in the No. 56/79 dated was provided context of the 4.04.1979 which for, subject to subsequent contained a certain Scheme and that Scheme for conditions. After since the family appointment on the coming into had taken full compassionate force of the new gratuity under grounds was in Scheme, the the old scheme, force. But the claimant was they were not Scheme directed by the entitled to seek provided for bank to submit a compassionate 9 W.P. No.6563/2015 appointment, fresh application appointment only for those under the new even under the who do not opt Scheme. The old Scheme.
for payment of claimant did not
gratuity for the apply under the
full term of new Scheme, as
service of he was
employee who interested only
died in harness. in
compassionate
appointment and
not monetary
benefit.
N.C. Under the But by virtue of After taking
Santosh v. State existing Scheme an amendment note of a
of referable to Rule to the proviso to reference made
Karnataka (202 5 of the Rule 5, a minor in State Bank of
0) 7 SCC 617 (a Karnataka Civil dependant India v. Sheo
three Member Services should apply Shankar
Bench) (Appointment within one year Tewari to a
on from the date of larger bench, a
Compassionate death of the three member
Grounds) Rules, Government Bench of this
1999, a minor servant and must Court held
dependant of a have attained the in N.C. deceased age of 18 years Santosh that the Government on the date of norms employee may making the prevailing on the apply within one application. date of year from the Applying the consideration of date of attaining amended the application majority. provisions, the should be the appointment of basis for persons already consideration of made on the claim for compassionate compassionate grounds, were appointment.
cancelled by the The Bench
appointing further held that
authority which the dependant of
10 W.P. No.6563/2015
led to the a government
challenge before employee, in the
this Court. absence of any
vested right
accruing on the
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 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 11 W.P. No.6563/2015 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, 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 12 W.P. No.6563/2015 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 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 13 W.P. No.6563/2015 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."
12. The Supreme Court in the case of State of Madhya Pradesh Vs. Ashish 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 14 W.P. No.6563/2015 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 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."15 W.P. No.6563/2015
13. Therefore, it is clear that policy for compassionate appointment which was in force on the date of death of employee is relevant.
14. Father of petitioner had died in the year 1996, therefore policy for appointment on compassionate ground which was issued on 10/06/1994 was in force.
15. Clause (1) and (5) of policy dated 10/06/1994 reads as under:-
"(,d) ;fn fdlh 'kkldh; lsod dh vlkef;d e`R;q gks tkrh gS rks mldh fo/kok vFkok mldh oS/k lUrku ¼ftlesa lkSrsyk iq=@iq=h Hkh 'kkfey gS½ dks ukSdjh nh tk;sxhA vU; fdlh lnL; ;k fjLrsnkj dks ukSdjh ugha nh tk;sxhA * * * (ikap) ;fn fdlh 'kkldh; lsod dh e`R;q ds le;
mlds ifjokj dk lnL; vo;Ld gks rks ,sls vo;Ld lnL; dks vuqdEik fu;qfDr dh ik=rk mlds o;Ld gksus ij gksxh vkSj mlds vkosnu djus ij vuqdEik fu;qfDr nh tk ldsxhA"
16. From plain reading of clause (1), it is clear that appointment on compassionate ground could have been granted to legitimate child of deceased employee only and not to other member of family or relatives.
17. As already held, suit filed by mother of petitioner for declaration that she is the legally wedded wife of late Shri Chhidami Lal Sharma has already been dismissed which has been affirmed up to the stage of second appeal.
18. Copy of order passed in the case of succession certificate has been filed by petitioner as Annexure-P/3. In paragraph 2 of the said order, undisputed facts are mentioned which reads as under:-
"2- izdj.k esa vfookfnr rF; gS fd e`rd fNnkeh yky 'kekZ e/;izns'k iqfyl foHkkx esa vkj{kd ds in ij iqfyl ykbZu tcyiqj esa dk;Zjr Fks] ftudh e`R;q fnukad 8-6-96 dks gks pqdh gS e`rd fNnkeh yky 'kekZ 16 W.P. No.6563/2015 dk fookg izkjEHk esa Jhefr 'kf'kizHkk 'kekZ vukosfndk Øa-4 tks fd vkosfndk Øa-1 vkjrh 'kekZ dh ekW gS mlls gqvk FkkA 'kf'kizHkk 'kekZ orZeku esa ykirk gSa ftlds ykirk mijkar Lo- fNnkehyky }kjk viuk nwljk fookg fnukad 4-1-1990 dks iq"ik ckbZ 'kekZ vkosnd Øa-2 ls 4 dh ekW ls fd;k Fkk iq"ik ckbZ 'kekZ }kjk Lo- fNnkeh yky 'kekZ dh oS/k ifRu gksus ds laca/k esa O;ogkj okn Øa- 37v@99 U;k;ky; pkSngoka O;-uk- oxZ&2 tcyiqj dh U;k;ky; esa izLrqr fd;k x;k Fkk tks fd fnukad 11-8-2000 dks fujLr fd;k x;k ftlds laca/k esa izLrqr izFke vihy Øekad 72,@2000 U;k;ky; "k"Be vij ftyk U;k;k/kh'k tcyiqj }kjk fnukad 4-1-2001 dks ,oa lsds.M vihy ekuuh; e/;izns'k mPp U;k;ky; tcyiqj }kjk lsd.M vihy Øa- 338@2001 vkns'k fnukad 6-9-2005 }kjk fujLr fd;k x;k rFkk iq"ik ckbZ 'kekZ ds fo:) e`rd fNnkeh yky 'kekZ dh gR;k fd;s tkus ds laca/k esa /kkjk 302@201 Hkk-na-la- ds rgr izdj.k pyk Fkk ftlesa fnukad 11-2-99 dks U;k;ky; f}rh; vfrfjDr l= U;k;k/kh'k tcyiqj }kjk nks"keqDr fd;k x;k FkkA"
19. Thus, it was the case of mother of petitioner that since whereabouts of wife of late Shri Chhidami Lal Sharma was not known, therefore he had performed second marriage.
20. Now the only question for consideration is as to whether marriage of mother of petitioner with Shri Chhidami Lal Sharma can be said to be a valid marriage or not?
21. Subsequently, Arti Sharma had filed a suit for declaration that her mother Smt. Shashiprabha Sharma has died a civil death. Copy of judgment and decree dated 19/12/2013 passed by 3rd Civil Judge Class- 2, Jabalpur in Civil Suit No.4-A/2012 has been filed as Annexure-P/5 and paragraph 3 of the said judgment and decree reads as under:-
"3. Okkn i= la{ksi esa bl izdkj gS fd oknh dVjk] vk/kkjrky] rglhy o ftyk&tcyiqj dh LFkk;h 17 W.P. No.6563/2015 fuoklh gSA oknh dh ekW Jherh 'kf'kizHkk 'kekZ] Lo- fNnkehyky 'kekZ dh fookfgr ifRu gS rFkk oknh mudh ,dek= larku gSA oknh dh ekW Jherh 'kf'kizHkk 'kekZ o"kZ 1989&90 ls ykirk gks xbZ gSa rFkk mlds mijkar oknh ds firk rFkk mudh e`R;q ds ckn oknh us Jherh 'kf'kizHkk 'kekZ dh dkQh [kkstchu dh] ysfdu mudk dksbZ irk ugha pyk rFkk irk u pyus ds ckn mudk e`R;q izek.k i= izkIr djus dk iz;kl fd;k x;k] fdUrq 'kkldh; vfHkys[kksa esa mudh e`R;q ntZ u gksus ds dkj.k e`R;q izek.k i= izkIr ugha gks ldk gSA oknh ds }kjk vius e`r firk Lo- fNnkehyky 'kekZ dh muds iqfyl foHkkx esa tek jkf'k dks izkIr djus ds fy;s U;k;ky; v"Ve O;ogkj U;k;k/kh'k oxZ&,d] tcyiqj }kjk lDls'ku izdj.k esa vkns'k fnukad 16- 07-2010 ds ifjikyu esa viuh ekW Jherh 'kf'kizHkk 'kekZ dh jkf'k izkIr djus ds fy;s vkosnu fn;k] ijarq iqfyl foHkkx }kjk oknh dks jkf'k nsus ls badkj dj fn;k x;k ,oa Jherh f'kf'kizHkk 'kekZ ds e`R;q izek.k i= dh ekax dh xbZA Jherh 'kf'kizHkk 'kekZ dks ykirk gq;s 07 o"kZ ls vf/kd le; gks pqdk gSA vr% Jherh 'kf'kizHkk 'kekZ dks ykirk] lg e`r ?kksf"kr djus rFkk uxj&fuxe dks e`R;q izek.k i= tkjh djus dk vkns'k fn;s tkus ds fy;s nkok izLrqr fd;k gSA"
22. Thus, it is clear that first wife of late Shri Chhidami Lal Sharma went missing sometimes in the year 1989-90, whereas according to facts mentioned in the order dated 16/07/2010 passed by 8th Civil Judge Class-1, Jabalpur in succession case No.8/09, deceased employee late Shri Chhidami Lal Sharma contracted marriage on 04/01/1990 with Pushpa Bai Sharma. Therefore, if both the facts are taken as undisputed facts then it is clear that just within a period of one year from the date when first wife of late Shri Chhidami Lal Sharma went missing, he contracted second marriage.
23. Since whereabouts of first wife of late Shri Chhidami Lal Sharma were not known, therefore it is clear that only after 7 years of the date 18 W.P. No.6563/2015 when first wife of Chhidami Lal Sharma went missing, it can be presumed that she has died a civil death.
24. Since mother of petitioner got married to late Shri Chhidami Lal Sharma only within one year from the date when first wife of late Shri Chhidami Lal Sharma went missing, therefore it is clear that marriage of mother of petitioner with late Shri Chhidami Lal Sharma was a void marriage because on the date of her marriage, late Shri Chhidami Lal Sharma was having a living spouse.
25. Under these circumstances, this Court is left with no other option but to hold that petitioner was an illegitimate child of late Shri Chhidami Lal Sharma and in view of clause (1) of policy for appointment on compassionate ground dated 10/06/1994, he was even otherwise not entitled for appointment on compassionate ground.
26. Furthermore, father of petitioner died in the year 1996 and 27 long years have passed. Even application for appointment on compassionate ground was made in the year 2014 i.e. after 18 years of death of father of petitioner. Although petitioner was engaged in legal battle but it is well established principle of law that if dependents of deceased employee can survive for substantial long period, then they are not entitled for appointment on compassionate ground for a simple reason that appointment on compassionate ground is not an alternative mode of regular appointment but it is a concession to grieved family to tide over the crises on account of untimely death of bread winner.
27. The Supreme Court in the case of The State of West Bengal Vs. Debabrata Tiwari and Ors. Etc., decided on 3rd March, 2023 in Civil Appeal Nos.8842-8855 of 2022 has held as under:-
"7.2. On consideration of the aforesaid decisions of this Court, the following principles emerge:19 W.P. No.6563/2015
i. That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions and must be resorted to only in order to achieve the stated objectives, i.e., to enable the family of the deceased to get over the sudden financial crisis.
ii. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis. iii. Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate employment cannot be claimed or offered after a lapse of time and after the crisis is over.
iv. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.
v. In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source.20 W.P. No.6563/2015
7.3. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis due to the death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be in a position to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Having regard to such an object, it would be of no avail to grant compassionate appointment to the dependants of the deceased employee, after the crisis which arose on account of death of a bread-winner, has been overcome. Thus, there is also a compelling need to act with a sense of immediacy in matters concerning compassionate appointment because on failure to do so, the object of the scheme of compassionate would be frustrated.
Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and thus lose its significance and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out for consideration.
7.4. As noted above, the sine qua non for entertaining a claim for compassionate appointment is that the family of the deceased employee would be unable to make two ends meet without one of the dependants of the deceased employee being employed on compassionate grounds. The financial condition of the family of the deceased, at the time of the death of the deceased, is the primary consideration that ought to guide the authorities' decision in the matter.
7.5. Considering the second question referred to above, in the first instance, regarding whether 21 W.P. No.6563/2015 applications for compassionate appointment could be considered after a delay of several years, we are of the view that, in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Further, the financial circumstances of the family of the deceased, may have changed, for the better, since the time of the death of the government employee. In such circumstances, Courts or other relevant authorities are to be guided by the fact that for such prolonged period of delay, the family of the deceased was able to sustain themselves, most probably by availing gainful employment from some other source. Granting compassionate appointment in such a case, as noted by this Court in Hakim Singh would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession which is contrary to the Constitution. Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee.
8. Laches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled him for grant of such relief was explained succinctly by Sir Barnes Peacock, in Lindsay Petroleum Co. vs. Prosper Armstrong, (1874) 3 PC 221 as under:
"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 22 W.P. No.6563/2015 which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, 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 or limitations, 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."
Whether the above doctrine of laches which disentitled grant of relief to a party by Equity Court of England, could disentitle the grant of relief to a person by the High Court in the exercise of its power under Article 226 of our Constitution, came up for consideration before a Constitution Bench of this Court in Moon Mills Ltd. vs. M. R. Meher, President, Industrial Court, Bombay, AIR 1967 SC 1450. In the said case, it was regarded as a principle that disentitled a party for grant of relief from a High Court in the exercise of its discretionary power under Article 226 of the Constitution.
In State of M.P. vs. Nandlal Jaiswal, (1986) 4 SCC 566 this Court restated the principle articulated in earlier pronouncements in the following words:
"9. ... the High Court in exercise of its 23 W.P. No.6563/2015 discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the Petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this Rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction."
While we are mindful of the fact that there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution, ordinarily, a writ petition should be filed within a reasonable time, vide Jagdish Lal vs. State of Haryana, (1997) 6 SCC 538; NDMC vs. Pan Singh, (2007) 9 SCC 278.
9. Further, simply because the Respondents-Writ Petitioners submitted their applications to the relevant authority in the year 2005-2006, it cannot be said that they diligently perused the matter and had not slept over their rights. In this regard, it may be apposite to refer to the decision of this Court in State of Uttaranchal vs. Shiv Charan Singh Bhandari, (2013) 12 SCC 179, wherein the following observations were made:
"19. From the aforesaid authorities it is 24 W.P. No.6563/2015 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."
(emphasis by us) *******
10. Applying the said ratio to the facts of the present case, we hold that the Respondents-Writ Petitioners, upon submitting their applications in the year 2006-2005 did nothing further to pursue the matter, till the year 2015 i.e., for a period of ten years. Notwithstanding the tardy approach of the authorities of the Appellant-State in dealing with their applications, the Respondent-Writ Petitioners delayed approaching the High Court seeking a writ in the nature of a mandamus against the authorities of the State. In fact, such a prolonged delay in approaching the High Court, may even be regarded as a waiver of a remedy, as discernible by the conduct of the Respondents-Writ Petitioners. Such a delay would disentitle the Respondents-Writ Petitioners to the discretionary relief under Article 226 of the Constitution. Further, the order of the High Court dated 17th March, 2015, whereby the writ petition filed by some of the Respondents herein was disposed of with a direction to the Director of Local Bodies, Government of West Bengal to take a decision as to the appointment of the Respondents-Writ Petitioners, cannot be considered to have the effect of revival of the cause of action.
11. It may be apposite at this juncture to refer to the following observations of this Court in Malaya Nanda Sethy vs. State of Orissa, AIR 2022 SC 2836, as to the manner in which the authorities must consider and decide applications for appointment on compassionate grounds:
"9. Before parting with the present order, we 25 W.P. No.6563/2015 are constrained to observe that considering the object and purpose of appointment on compassionate grounds, i.e., a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service and the basis or policy is immediacy in rendering of financial assistance to the family of the deceased consequent upon his untimely death, the authorities must consider and decide such applications for appointment on compassionate grounds as per the policy prevalent, at the earliest, but not beyond a period of six months from the date of submission of such completed applications.
We are constrained to direct as above as we have found that in several cases, applications for appointment on compassionate grounds are not attended in time and are kept pending for years together. As a result, the applicants in several cases have to approach the concerned High Courts seeking a writ of Mandamus for the consideration of their applications. Even after such a direction is issued, frivolous or vexatious reasons are given for rejecting the applications. Once again, the applicants have to challenge the order of rejection before the High Court which leads to pendency of litigation and passage of time, leaving the family of the employee who died in harness in the lurch and in financial difficulty. Further, for reasons best known to the authorities and on irrelevant considerations, applications made for compassionate appointment are rejected. After several years or are not considered at all as in the instant case.
If the object and purpose of 26 W.P. No.6563/2015 appointment on compassionate grounds as envisaged under the relevant policies or the rules have to be achieved then it is just and necessary that such applications are considered well in time and not in a tardy way. We have come across cases where for nearly two decades the controversy regarding the application made for compassionate appointment is not resolved. This consequently leads to the frustration of the very policy of granting compassionate appointment on the death of the employee while in service. We have, therefore, directed that such applications must be considered at an earliest point of time. The consideration must be fair, reasonable and based on relevant consideration. The application cannot be rejected on the basis of frivolous and for reasons extraneous to the facts of the case. Then and then only the object and purpose of appointment on compassionate grounds can be achieved."
(emphasis by us) In the said case, the claim of the appellant- applicant therein for compassionate appointment was directed by this Court to be considered by the competent authority. This Court noted that in the said case, there was no lapse on the part of the appellant- applicant therein in diligently pursuing the matter. The delay in considering the application of the appellant therein was held to be solely attributable to the authorities of the State, and no part of it was occasioned by the appellant-applicant. Further, in the said case, the appellant-applicant was prejudiced not only because of the prolonged delay in considering his application but also by the fact that in the interim, the policy of the State governing compassionate appointment had changed to his detriment. Therefore, the facts of the said case were distinct from the facts involved herein. In the present case, the conduct of 27 W.P. No.6563/2015 the Respondents-Writ Petitioners cannot be said to be blameless in that they did not pursue their matter with sufficient diligence. However, the observations made in the said case as to the manner in which applications for compassionate appointment are to be considered and disposed of are relevant to the present case.
As noted in the said case, the operation of a policy/scheme for compassionate appointment is founded on considerations of immediacy. A sense of immediacy is called for not only in the manner in which the applications are processed by the concerned authorities but also in the conduct of the applicant in pursuing his case, before the authorities and if needed before the Courts.
12. In the present case, the applications for compassionate appointment were made by the Respondents-Writ Petitioners in the year 2005-2006. Admittedly, the first concrete step taken by the Chairman of the Burdwan Municipality was in the year 2013, when the said authority forwarded a list of candidates to be approved by the Director of Local Bodies, Burdwan Municipality. The Respondents- Writ Petitioners knocked on the doors of the High Court of Calcutta only in the year 2015, i.e., after a lapse of nearly ten years from the date of making the application for compassionate appointment. The Respondents-Writ Petitioners were not prudent enough to approach the Courts sooner, claiming that no concrete step had been taken by the Appellant- State in furtherance of the application by seeking a Writ in the nature of Mandamus.
13. The sense of immediacy in the matter of compassionate appointment has been lost in the present case. This is attributable to the authorities of the Appellant-State as well as the Respondents-Writ Petitioners. Now, entertaining a claim which was made in 2005-2006, in the year 2023, would be of no avail, because admittedly, the Respondents-Writ Petitioners have been able to eke out a living even though they did not successfully get appointed to the 28 W.P. No.6563/2015 services of the Municipality on compassionate grounds. Hence, we think that this is therefore not fit cases to direct that the claim of the Respondents-Writ Petitioners for appointments on compassionate grounds, be considered or entertained. "
28. Viewed from every angle, this Court is of the considered opinion that petitioner is not entitled for appointment on compassionate ground.
29. Accordingly, petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE Shubhankar Digitally signed by SHANU RAIKWAR Date: 2023.10.10 17:20:22 +05'30'