Allahabad High Court
Akhilesh Kumar vs Union Of India And 4 Others on 4 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2385
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - A No. - 19255 of 2019 Petitioner :- Akhilesh Kumar Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Ganesh Kumar Verma Counsel for Respondent :- A.S.G.I.,Mithilesh Ch. Tripathi Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Heard Sri Ganesh Kumar Verma, learned counsel for petitioner and Sri S.P.Singh, learned Additional Solicitory General of India for respondents 1 to 4.
2. This writ petition under Article 226 of Constitution of India has come up against judgment and order dated 30.08.2019 passed by Central Administrative Tribunal, Allahabad, dismissing Original Application No.330/00666 of 2014 of applicant-petitioner on the ground of limitation.
3. Father of petitioner died in harness on 19.03.2003. Thereafter, petitioner's mother submitted an application for compassionate appointment in April, 2003. The said application was rejected vide order dated 30.03.2007. The said order was never challenged. Thereafter, on 03.08.2008, another representation was filed claiming compassionate appointment by petitioner himself, which was replied by authorities vide letter dated 20.11.2008 that application for compassionate appointment was already rejected earlier on 30.3.2007 and no action is required to be taken further. Even this order was never challenged. On the contrary what petitioner did is that he continued to make representations i.e. dated 07.12.2009 and 22.12.2013 and thereafter came to Tribunal seeking following reliefs:
"To issue an order or directions to reconsider the grievances of the applicant for compassionate appointment for which the applicant gave his last representation on 22.12.2013 [Annexure no. A-1 of original application]."
4. Tribunal has found that under Section 21 of Administrative Tribunals Act, 1985 (hereinafter referred to as "Act, 1985") period of limitation is one year but it is condonable if on an application submitted by applicant, he satisfies the Tribunal that he had sufficient cause for not making the application withing such period.
5. In the present case, application for compassionate appointment was rejected on 30.3.2007. Thereafter petitioner did not explain anything except that he continued to make representations. Tribunal found that continued representations did not explain delay and laches at all and relying on various authorities of Supreme Court, mentioned in detail in the judgment in question, has rejected the application.
6. Before us also counsel for petitioner submitted that his last representation was submitted in 2013 and the cause of action should have been taken to have arisen from that date.
7. The submission is thoroughly misconceived, inasmuch as, claim for compassionate appointment was rejected on 30.3.2007 and the same was again communicated to petitioner vide letter dated 20.11.2008. Therefore, cause of action had arisen to petitioner in any case on 30.3.2007 or 20.11.2008. Under Section 21 of Act, 1985, period of limitation is one year. Therefore, limitation expired on 30.3.2008 and in any case on 20.11.2009. Original Application was filed by petitioner before Tribunal in 2014. More than 5/6 years beyond the period of limitation was not explained before Tribunal except that petitioner made continuous representations.
8. It is well settled that continuous representations do not give rise to any fresh cause of action. In the context of delay and laches under Article 226 of Constitution, in K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 SC 993, Court held that repeated representations would not be adequate explanation to take care of delay. This plea was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330= 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities of Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423. This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors., 2009(1) SCC 297.
9. In C. Jacob vs. Director of Geology and Mining and another, 2008(10) SCC 115 Court observed that Courts and Tribunals proceed on the assumption that every citizen deserves a reply to his representation. It also observed that a mere direction to consider and dispose of the representation does not involve any 'decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to 'consider'. If the representation is considered and rejected, the ex employee files an application/ writ petition, not with reference to the original cause of action may be of 10 or 20 years back but by treating the order of rejection passed after a decade or two or more from the date of original cause of action, as a fresh cause of action. In such cases normally a prayer is made for quashing of order of rejection of representation and they further to grant relief as claimed in representation. The Tribunals/ Courts routinely entertain such applications/ petitions ignoring the huge delay preceding the representation and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. Deprecating it and holding that such order passed on representation will not furnish a fresh cause of action and revive a stale or dead claim, Supreme Court in para 10 said as under:
"10. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim."
10. In Union of India and others vs. M.K. Sarkar, 2010(2) SCC 58 Court said that a belated representation with regard to statutory or dead issue if considered or decided, in compliance with a direction by Court/ Tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the 'dead' or time barred issue. Issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a Court's direction. Neither a Court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
11. Delay and laches in filing writ petition under Article 226 of Constitution, where there is no statutory period of limitation, cannot be justified on the basis of mere sending of representations. The same would apply more effectively in a case where statutory period of limitation is prescribed and action in law is not initiated within period of limitation. We, therefore, find nothing wrong on the part of Tribunal in rejecting claim of petitioner for compassionate appointment on the ground of limitation.
12. Even otherwise, compassionate appointment cannot be claimed after a decade or more. In the present case, petitioner's father died on 19.3.2003. He claimed compassionate appointment by filing original application in Tribunal in 2014 i.e. after 11 years and today before this Court he is in 2019 i.e. after more than 16 and a half years from the date of death of his father. Even if everything is presumed in favour of petitioner, we find it difficult to grant relief of directing respondents to give compassionate appointment to petitioner after more than 16 years as this will defeat the very objective and purpose for which policy of compassionate appointment has been evolved, which is meant for providing minimum succor to deceased family for its survival and not providing employment by way of reservation on account of succession.
13. An appointment on compassionate basis claimed after a long time has seriously been deprecated by Court in Union of India Vs. Bhagwan 1995 (6) SCC 436, Haryana State Electricity Board Vs. Naresh Tanwar, (1996) 8 SCC 23. In the later case, Court said:
"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. ..... 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."
14. In Managing Director, MMTC Ltd., New Delhi and Anr. Vs. Pramoda Dei Alias Nayak 1997 (11) SCC 390, Court said:
"As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tied over the sudden financial crises and not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment."
15. In Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors. AIR 1998 SC 2230, Court said:
"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 resulting due to death of the bread earner which has left the family in penury and without any means of livelihood."
16. In State of U.P. & Ors. Vs. Paras Nath, AIR 1998 SC 2612, Court said:
"The purpose of providing employment to a dependent of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case."
17. In S. Mohan Vs. Government of Tamil Nadu and Anr. 1999 (I) LLJ 539, Court said:
"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."
18. In Sanjay Kumar Vs. The State of Bihar & Ors. AIR 2000 SC 2782 it was held:
"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"
19. In Haryana State Electricity Board Vs. Krishna Devi JT 2002 (3) SC 485 = 2002 (10) SCC 246, Court said:
"As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we are of the opinion that it was not to meet the immediate financial need of the family ...."
20. In Punjab National Bank & Ors. Vs. Ashwini Kumar Taneja AIR 2004 SC 4155, court said:
"It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis."
21. In National Hydroelectric Power Corporation & Anr. Vs. Nanak Chand & Anr. AIR 2005 SC 106, Court said:
"It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises."
22. In State of Jammu & Kashmir Vs. Sajad Ahmed AIR 2006 SC 2743, Court said:
"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 bread earner and likelihood of the family suffering because of the set back. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to 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 added)
23. In I.G. (Karmik) and Ors. v. Prahalad Mani Tripathi 2007 (6) SCC 162, Court said:
"Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion."
24. In Mumtaz Yunus Mulani Vs. State of Maharashtra & Ors, 2008 (11) SCC 384, Court held that now a well settled principle of law is that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or public sector undertakings 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 sudden financial crises.
25. Following several earlier authorities, in M/s Eastern Coalfields Ltd. Vs. Anil Badyakar and others, (2009) 13 SCC 122 = JT 2009 (6) SC 624 the Court said:
"The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over."
26. In Santosh Kumar Dubey Vs. State of U.P. & Ors. 2009 (6) SCC 481, Court said:
"The very concept of giving a compassionate appointment is to tide over the financial difficulties that is faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. 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 Government service."
27. The Court considered that father of appellant Santosh Kumar Dubey (supra) became untraceable in 1981 and for about 18 years the family could survive and successfully faced and over came the financial difficulties. In these circumstances it further held:
"That being the position, in our considered opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions."
28. The importance of penury and indigence of family of deceased employee and need to provide immediate assistance for compassionate appointment has been considered in Union of India (UOI) & Anr. Vs. B. Kishore 2011(4) SCALE 308. This is relevant to make the provisions for compassionate appointment valid and constitutional else the same would be violative of Articles 14 and 16 of the Constitution of India. Court said:
"If the element of indigence and the need to provide immediate assistance for relief from financial deprivation is taken out from the scheme of compassionate appointments, it would turn out to be reservation in favour of the dependents of an employee who died while in service which would be directly in conflict with the ideal of equality guaranteed under Articles 14 and 16 of the Constitution."
29. It is thus clear that rule of compassionate appointment has an object to give relief against destitution. It is not a provision to provide alternate employment or an appointment commensurate with the post held by the deceased employee. It is not by way of giving similarly placed life to the dependents of the deceased. While considering the provision pertaining to relaxation under Rules, 1974 the very object of compassionate appointment cannot be ignored. This is what has been reiterated by a Division Bench of this Court in Smt. Madhulika Pathak Vs. State of U.P. & ors. 2011 (3) ADJ 91.
30. In Bhawani Prasad Sonkar Vs. Union of India and others (2011) 4 SCC 209, Court said that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our Constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of Constitution of India. No other mode of appointment is permissible. Nevertheless, concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, scheme has to be strictly construed and confined only to the purpose it seeks to achieve.
31. In MGB Gramin Bank Vs. Chakrawarti Singh (2014) 13 SCC 583, Court has said that compassionate appointment cannot be granted as of right and application for compassionate appointment need be decided as expeditiously as possible. Compassionate appointment is not a vested right. Courts should not stretch the scheme for compassionate appointment by liberal interpretation on humanitarian grounds beyond permissible limits so as to allow compassionate appointment after a long time from the date of death. Either such appointments are made immediately or within a reasonable time of death and if appointment is not claimed for long time or made, it would be travesty of justice to compassionate appointment after a long time.
32. This has been followed in Canara Bank and others Vs. M. Mahesh Kumar and others (2015) 7 SCC 412. Court stressed upon aforesaid recent authorities that every appointment to public office must strictly adhere to the mandatory requirement of Articles 14 and 16 of Constitution of India. Compassionate appointment is an exception so as to provide employment to remove financial constraints suffered by bereft family of a government servant who die in harness and family has lost its bread earner. However, it was held that mere death of a government employee in harness does not entitle the family to claim compassionate appointment.
33. In view of above discussion and exposition of law as well as facts of this case, we do not find any reason to interfere with judgment and order of Tribunal assailed in writ petition.
34. Writ petition lacks merit. Dismissed.
Order Date :- 4.12.2019 KA