Madhya Pradesh High Court
Smt. Rekha Bai Yadav vs Security Paper Mill on 9 October, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P. No. 58/2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 9th OF OCTOBER, 2023
WRIT PETITION No. 58 of 2015
BETWEEN:-
SMT. REKHA BAI YADAV, W/O LATE SHRI
PRAMOD KUMAR YADAV, AGED ABOUT 43
YEARS, R/O C/O SHRI BALKISHAN YADAV,
BACHAVANI TEHSIL BANKHEDI, DISTRICT
HOSHANGABAD (MADHYA PRADESH)
.....PETITIONER
(BY MS. AKASHMI TREVEDI- ADVOCATE)
AND
1. SECURITY PAPER MILL (A UNIT OF
SECURITY PRINTING & MINTING
CORPORATION OF INDIA LTD) WHOLLY
OWNED BY GOVT. OF INDIA,
HOSHANGABAD-461005 (M.P.) THROUGH
GENERAL MANAGER (MADHYA PRADESH)
2. CHAIRMAN-CUM-MANAGING DIRECTOR
SECURITY PAPER & MINTING
CORPORATION OF INDIA LTD., 16TH FLOOR,
JAWAHAR VYAPAR BHAVAN, JANPAD MARG,
NEW DELHI-110011.
.....RESPONDENTS
(BY SHRI ANAND NAYAK- ADVOCATE FOR RESPONDENTS)
---------------------------------------------------------------------------------------------------------
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 the following reliefs:-
2 W.P. No. 58/2015"i) call for entire records pertaining to the case.
ii) quash the impugned order dt.10.04.2013 ANNEXURE-P/1.
iii) direct the respondents to consider the case of appointment on compassionate ground of the petitioner based on the vacancies available in each year from 2004 onwards and if vacancy was available to direct the respondent to appoint the petitioner on suitable post.
iv) grant cost of petition.
v) grant any other relief as deemed fit and proper in
the facts and circumstances of the case."
2. It is submitted by counsel for petitioner that the husband of the petitioner was an employee of Security Paper Mill, Hoshangabad. He died in harness on 09.09.2000. Her application for appointment on compassionate ground was rejected by the respondents on the ground that there is a time limit of three years for consideration of application and since 5% of vacant posts were not available during the period three years from the date of death of her husband, therefore, her application for appointment on compassionate ground cannot be considered.
3. Per contra, it is submitted by counsel for respondents that after the death of husband of petitioner, the Security Paper Mill has been taken over by Security Paper & Minting Corporation of India Limited (SPMCIL) which is a completely separate and independent entity. Since, the husband of the petitioner was an employee of Security Paper Mill which was the unit wholly owned by Government of India, therefore, the present institute is not responsible for addressing to the grievances of the petitioner.
4. Heard learned counsel for the parties
5. So far as the submission with regard to maintainability of this petition against SPMCIL is concerned, the respondents have not filed any document to show that whether the Security Paper Mill was taken 3 W.P. No. 58/2015 over by SPMCIL along with its assets only or was taken over with its liabilities also?
6. It is submitted by counsel for respondents that after the Security Paper Mill, Hoshangabad was taken over by SPMCIL, the employees were given options and those who opted for SPMCIL were taken over and a new agreement was executed between such employees and SPMCIL. Thus, it is submitted that even otherwise respondent No. 2 is not liable to consider the case of petitioner for grant of appointment on compassionate ground.
7. Faced with such a situation, petitioner has amended the petition and has also impleaded Chairman-cum-Managing Director, SPMCIL, New Delhi as respondent No. 2.
8. Considered the submissions made by counsel for the parties.
9. It appears that by office memorandum dated 05 of May, 2003, a limitation of 3 years was imposed for consideration of application for compassionate appointment. Later on, by office memorandum dated 26th of July, 2012, the office memorandum dated 05th of May, 2003 was withdrawn.
10. The claim of the petitioner was rejected by order dated 10.04.2013 i.e. during the period when office memorandum dated 05th of May, 2003 was in force.
11. The basic question for consideration is as to whether the policy for appointment on compassionate ground which was in force on the date of death of employee is relevant or the policy for appointment on compassionate ground which was in force on the date of consideration of application is relevant?
12. The Supreme Court in the case of Indian Bank v. Promila, reported in (2020) 2 SCC 729 has held that the policy for appointment 4 W.P. No. 58/2015 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."
13. 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:5 W.P. No. 58/2015
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 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 6 W.P. No. 58/2015 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
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, 7 W.P. No. 58/2015 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 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
8 W.P. No. 58/2015
(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 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
9 W.P. No. 58/2015
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
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.
10 W.P. No. 58/2015But 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 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 11 W.P. No. 58/2015 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 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 12 W.P. No. 58/2015 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 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 13 W.P. No. 58/2015 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."
14. 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 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 14 W.P. No. 58/2015 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. Thus, it is clear that the policy which was in force on the date of death of employee is relevant. The husband of the petitioner died in harness on 09.09.2000 i.e much prior to office memorandum dated 05th of May, 2003 came into existence. Thus, it is clear that any subsequent change in the policy for appointment on compassionate ground will not apply to the case of the petitioner and the respondents should not have rejected the claim of the petitioner on the ground that more than 3 years have passed from the date of death of the employee. In fact the respondents should have considered the case of the petitioner in light of the policy for appointment on compassionate ground which was in force on the date of death of her husband i.e. 09.09.2000.
16. Now the next question for consideration is that after taking over by SPMCIL, whether respondent No. 2 has to consider the case of petitioner or the Union of India has to consider the same because Security Paper Mill was a unit wholly owned and controlled by Union of India.
15 W.P. No. 58/201517. As already pointed out the respondents have not filed any document to show as to whether the SPMCIL had taken over along with all the assets and liabilities of Security Paper Mill or not?
18. It is not the case of the respondents that the liabilities of Security Paper Mill were not taken over by SPMCIL. Under these circumstances, this Court is of the considered opinion that any liability of Security Paper Mill which had already arisen prior to taking over by SPMCIL will be looked into by SPMCIL.
19. It is submitted by counsel for petitioner that SPMCIL has formulated its own policy for appointment on compassionate ground. However, it is made clear that since policy which was in force on the date of death of husband of the petitioner is relevant, therefore, any subsequent policy for appointment on compassionate ground formulated by SPMCIL is irrelevant. Furthermore, it is clear that the SPMCIL had taken over the Security Paper Mill, Hoshangabad subsequent to passing of impugned order.
20. Accordingly, order dated 10.04.2013 issued by Security Paper Mill, Hoshangabad (Annexure-P/1) is hereby quashed. The respondent No. 2 is directed to consider the case of the petitioner in light of policy for appointment on compassionate ground which was in force on the date of death of husband of the petitioner.
21. Needles to mention here that this Court has not considered the merits and demerits of the entitlement of the petitioner for appointment on compassionate ground and the decision shall be taken strictly in accordance with law without getting influenced or prejudiced by this order.
22. It is made clear that before deciding the application for appointment on compassionate ground, respondent No. 2 shall also 16 W.P. No. 58/2015 consider the fact with regard to taking over of the employees of the Security Paper Mill, Hoshangabad.
23. It is submitted by counsel for respondents that at the time of taking over of Security Paper Mill by SPMCIL, the employees were required to submit their options and only those employees were taken over by SPMCIL who had opted for their migration to SPMCIL and accordingly a new agreement was entered into.
24. Now the only question for consideration is as to whether all the employees were required to submit their options or the employees who did not submit their options for their migration to SPMCIL were taken over by the Union of India by default or not?
25. Since, the husband of the petitioner had already expired prior to taking over of Security Paper Mill by SPMCIL, therefore, there was no question of his exercising any option. If the employees not exercising their option in favour of SPMCIL were to be treated as employees of Union of India by default, then the respondent No. 2 shall immediately forward the case of the petitioner to the concerning department of Union of India for consideration of her application for appointment on compassionate ground. If that is done then the concerning department shall consider the case of the petitioner in accordance with the policy which was in force on the date of death of her husband i.e. on 09.09.2000 or else the respondent No. 2 shall consider.
26. The respondents shall be free to consider the aspect of delay as held by 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:17 W.P. No. 58/2015
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.
7.3. The object underlying a provision for grant of 18 W.P. No. 58/2015 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 applications for compassionate appointment could be 19 W.P. No. 58/2015 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 which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though 20 W.P. No. 58/2015 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 discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the 21 W.P. No. 58/2015 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 clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or 22 W.P. No. 58/2015 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 are constrained to observe that considering the object and purpose of appointment on compassionate grounds, i.e., a family of a 23 W.P. No. 58/2015 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 appointment on compassionate grounds as envisaged under the relevant policies or the rules have to be achieved then it is 24 W.P. No. 58/2015 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 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 25 W.P. No. 58/2015 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 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 26 W.P. No. 58/2015 Petitioners for appointments on compassionate grounds, be considered or entertained. "
27. Let the needful be done within a period of three months from the date of receipt of copy of this order.
28. With aforesaid observation, the petition is disposed off.
(G.S. AHLUWALIA) JUDGE ashish ASHISH KUMAR LILHARE 2023.10.10 19:39:29 +05'30'