Madhya Pradesh High Court
Avnish Kumar Pandey vs The State Of Madhya Pradesh on 10 February, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:6802
1 WP-38254-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 10th OF FEBRUARY, 2025
WRIT PETITION No. 38254 of 2024
AVNISH KUMAR PANDEY
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Pramod Singh Tomar - Advocate for petitioner.
Shri A.S. Baghel - Government Advocate for respondents/State.
ORDER
The present petition has been filed challenging the orders dated 08.02.2024 and 11.03.2024 whereby the claim of the petitioner for grant of compassionate appointment has been rejected.
2. Petitioner's father died in harness on 04.02.1990. The petitioner was minor at the relevant time. He attained majority on 13.02.2008. Thereafter, he submitted an application for grant of compassionate appointment. His application has been rejected on earlier occasion vide letter dated 29.02.2008 on the ground that the application has been filed beyond the period of seven years from the date of death therefore he preferred a writ petition being W.P. No.15895/2011 challenging the communication dated 29.02.2008 which was disposed off vide order dated 29.09.2013 directing the authorities to pass a speaking order. In pursuance to which again the order dated 19.11.2013 was passed by the authorities whereby the case of the petitioner was rejected. The Signature Not Verified Signed by: LORETTA RAJ Signing time: 17-02-2025 5:25:17 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6802 2 WP-38254-2024 petitioner again filed a writ petition being W.P. No.14674/2015 in which a decision was taken on 16.08.2022 directing the authorities to take a final decision taking into consideration the policy which was prevalent on the date of death of the deceased employees. In pursuance to the same the impugned order has been passed by the authorities.
3. It is the case of the petitioner that the verdict of this Court has not been followed in proper perspectives by the authorities. However the fact remains that the death has taken place in the family in the year on 04.02.1990.
4. The law with respect to compassionate appointment is considered and decided in several judgments and held that the compassionate appointment cannot be an alternate mode of recruitment, rather it is in a form of compassion shown by the authorities while considering the cases. The Hon'ble Supreme Court in several cases has held there are two recognized contingencies for grant of compassionate appointment; (i) to meet the sudden crisis occurring on account of death of the bread winner of the family and; (ii) to meet the crisis in a family on account of medical invalidation of the bread winner of the family. The factum of dependency and penury are required to be considered by the authorities.
5. The Hon'ble Supreme Court in the case of Santosh Kumar Dubey vs. State of U.P., reported in (2009) 6 SCC 481 has held as under:
"12. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in Signature Not Verified Signed by: LORETTA RAJ Signing time: 17-02-2025 5:25:17 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6802 3 WP-38254-2024 government service."
6. The Hon'ble Supreme Court in the case of Sanjay Kumar vs. State of Bihar and others, reported in (2000) 7 SCC 192 has held as under:
"3... This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education Vs. Pushpendra Kumar. It is also significant to notice that on the date when the first application was made by the petitioner on 02/06/1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as a petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief."
7. Recently, the Supreme Court in the case of State of West Bengal vs. Debabrata Tiwari and Ors. 2023 SCC Online SC 219 has held as under:-
"32. On consideration of the aforesaid decisions of this Court, the following principles emerge:
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 Signature Not Verified Signed by: LORETTA RAJ Signing time: 17-02-2025 5:25:17 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6802 4 WP-38254-2024 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.
33. 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 4 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.
34. 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. 3 5 . Considering the second question referred to above, in the first instance, regarding whether applications for compassionate appointment could be considered Signature Not Verified Signed by: LORETTA RAJ Signing time: 17-02-2025 5:25:17 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6802 5 WP-38254-2024 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, 5 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."
(underline supplied)
8. A similar view was taken by the Division Bench of this Court in the case of Beni Lal Bamney vs. Union of India and others , reported in 2003 (1) MPLJ 342 and in the case of Riazuddin Khan vs. State of M.P. and others , reported in 2005(4) MPLJ 575 and in the case of Managing Director, Madhya Pradesh Paschim Kshetra Vidyut Vitaran Co. and others vs. Ashiq Shah and another (W.A.No.10 of 2020).
9. Further the petition also suffers from delay and laches as the death has taken place in the year 1990. The petitioner is unable to explain the delay in approaching the Court.
10. Hon'ble Supreme Court has considered the aspect of delay in Signature Not Verified Signed by: LORETTA RAJ Signing time: 17-02-2025 5:25:17 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6802 6 WP-38254-2024 approaching the Court in the case Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Ors. reported in (2013) 12 SCC 649 wherein the Hon'ble Supreme Court has held as under :-
"21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, nonpedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bonafides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go-by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side Signature Not Verified Signed by: LORETTA RAJ Signing time: 17-02-2025 5:25:17 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6802
7 WP-38254-2024 unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:-
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.
11. The Hon'ble Supreme Court in the case of State of Orissa & Anr. vs. Mamata Mohanty, (2011) 3 SCC 436 has opined as under:-
"54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time."
12. A Division Bench of this Court in Focus Energy Ltd. (M/s) vs Government of India, (DB) reported in I.L.R. (2011) M.P. 53 relying upon Signature Not Verified Signed by: LORETTA RAJ Signing time: 17-02-2025 5:25:17 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6802 8 WP-38254-2024 judgments of the Hon'ble Supreme Court has observed as under :
"10. Thus, facts stated supra leads to irresistible conclusion that appellant is guilty of delay and laches. Its conduct disentitles it to any relief. In New Delhi Municipal Council v. Pan Singh and Others, AIR 2007 SC 1365 the Supreme Court has held that delay and laches are relevant factors for exercise of equitable jurisdiction. In Municipal Council, Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48 the Supreme Court has observed that discretionary relief can be provided to one who has not by his act or conduct given a go-bye to his rights. Equity favours a vigilant rather than an indolent litigant. In the State of Haryana v. Aravali Khanij Udyog, (2008) 1 SCC 663 it has been held that where third party rights are created, the High Court should not interfere. Similarly, in Shiba Shankar Mohapatra (supra) it has been held that the Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallizes in the interregnum."
13. The Hon'ble Supreme Court in the case of Karnataka Power Corpn. Ltd. vs K. Thangappan reported in (2006) 4 SCC 322 has held as follows:
"6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769] . Of course, the discretion has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [(1874) 5 PC 221 : 22 WR 492] (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC 1450] and Maharashtra SRTC v. Shri Balwant Regular Motor Service [(1969) 1 SCR 808 :
AIR 1969 SC 329] . Sir Barnes had stated:
"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 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 Signature Not Verified Signed by: LORETTA RAJ Signing time: 17-02-2025 5:25:17 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6802 9 WP-38254-2024 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 of limitation, 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."
14. It is further held by the Hon'ble Supreme Court in the case of Ashok Kumar vs District Magistrate, Basti reported in (2012) 3 SCC 311 that :
"10. ... It is time and again, stated that a party who has slept over his right since is not entitled to the discretionary relief of the High Court."
15. In view of the aforesaid legal proposition of law, no relief can be extended to the petitioner.
16. The writ petition sans merit and is accordingly dismissed. No order as costs.
(VISHAL MISHRA) JUDGE L.Raj Signature Not Verified Signed by: LORETTA RAJ Signing time: 17-02-2025 5:25:17 PM