Punjab-Haryana High Court
Mangat Rai vs State Of Punjab & Ors on 24 December, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.26939 of 2014 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.26939 of 2014
Date of decision: 24.12.2014
Mangat Rai
... Petitioner
Versus
State of Punjab and others
... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.Mohit Garg, Advocate,
for the petitioner.
*****
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
Vishwa Mitter and his brother Kuldeep Chand were slain by terrorists in the winter of 1990 in the dark days in the history of Punjab. The family of late Vishwa Mitter was survived by his wife, two sons and two daughters. Vishwa Mitter ran a medical shop, the income from which took care of the family. His widow was issued an identity card as a terrorist victim. She was provided financial assistance as per the Financial Assistance Rules, 1986 by the Government to tide over her hardship. The petitioner sought compassionate appointment after the premature death of his father, the dates of which requests are not mentioned in the petition. It is narrated that he sent a reminder in the year 1995 to consider his claim for a PARITOSH KUMAR 2015.01.07 11:48 I attest to the accuracy and integrity of this document CWP No.26939 of 2014 2 job. The next milestone is asserted to have occurred in 2005 when his request for compassionate appointment was rejected on the ground that he was overage by two months when he submitted his application for the first time. That was in the year 1995. The reasons for remaining idle from 1995 to 2005 and his silence have not been explained. It is not known as to what the petitioner made of himself for a decade till his representation was finally rejected in 2005 thereby creating the cause of action. What he did thereafter for almost another decade is also not known as nothing has been mentioned except that some representations were made during the period of which proof has not been placed on record much less the particulars thereof.
2. In paragraph 13 of the petition, it is asserted that one of the representations led to an enquiry conducted and in support of it, a letter dated 1st August, 2005 has been placed as Annexure P-7 which is a memo issued by Punjab Government Department of Revenue, Rehabilitation and Disaster Management addressed to the Deputy Commissioner, Patiala regarding the petitioner's case for compassionate appointment. The letter reveals that Government on perusing the original file discovered that the application was in fact filed in January, 1991 and the age has to be seen from the date of application by the terms of the policy. It is recorded in the letter that the age of the petitioner on 16th January, 1991, the admitted date of request application was approximately 36 years which makes the petitioner presently about 60 years of age. The Director-cum-Additional Secretary, Punjab Government in this letter dated 1st August, 2005 has recorded that as per instructions of the Government dated 6th August, 1991, relaxation of 5 years in age limit can be given in deserving cases but it is PARITOSH KUMAR 2015.01.07 11:48 I attest to the accuracy and integrity of this document CWP No.26939 of 2014 3 most certain from a reading of the letter that a wrong information was sent by the office of the Deputy Commissioner, Patiala with respect to the date of making a request for compassionate appointment that it was not made for the first time in 1995 but on 16th January, 1991. It is noteworthy that the life- line on which the petitioner's case hangs is this letter dated 1st August, 2005 which was been duly endorsed to him and to the Sub Divisional Magistrate, Samana, District Patiala. It is not the petitioner's case that he did not receive this letter, a document on which he pegs his case for relief. The history of this case beyond memo dated 1st August, 2005 [P-7] remains undocumented and unexplained as to why recourse was not taken to the law either before the functionaries of the department or the court to ventilate a grievance, if any.
3. Today, the petitioner's stand before the Court is that he is aged about 60 years and thus prays that the State be directed to offer him compassionate appointment in terms of the policy of the Government of Punjab dated 10th May, 1990 [P-1] since the Punjab Government circular dated 8th August, 1996 directs the departmental authorities to offer compassionate appointment to deserving persons within a period of 6 months as mentioned in the memo dated 1st August, 2005 and, therefore, a writ of mandamus be issued to the respondents to consider the period from the year 1991 up to the year 2005 notionally as period qualifying for pension and pensionary benefits even without praying for an appointment or securing one so far. There is no prayer in the petition at all for appointment on compassionate grounds. This is evident because he has passed the age of 58 years and, therefore, cannot claim appointment even on PARITOSH KUMAR 2015.01.07 11:48 I attest to the accuracy and integrity of this document CWP No.26939 of 2014 4 compassionate grounds from the respondents. There is no prayer for the consideration of this Court to appoint him from any particular date in the past by distinctly demonstrating accrual of a chose in action for bringing a law suit or enforcement of a legal right. The claim is based solely on delay in finalizing the case of the petitioner for appointment on compassionate reasons and the blame is put on the respondent department for its inaction for which action should be initiated against the erring officials.
4. As a matter of fact, the prayer in the petition is so peculiar that it deserves to be reproduced in this order for posterity: -
"1.Issue writ in the nature of mandamus directing the respondent authorities to consider the period from the year 1991 up to the year 2005 for calculating the pensionary benefits available to the petitioner. The petitioner is a terrorist affected victim and is fully eligible to be given compassionate appointment as per policies of the Government of Punjab dated 10.05.1990 (Annexure P 1). The compassionate appointment to the petitioner has been delayed only because of the fault of the respondent departmental authorities and this has been proved from the report of investigation done by respondent No.3 vide his report dated 01.08.2005 (Anexure P-7). The respondent Government has issued a circular dated 08.08.1996 directing that the compassionate appointments of the persons are to be made within a period of six months (Annexure P-8). In above mentioned report respondent No.3 has also proposed to initiate action against erring officials.
2.Issue any other writ or direction as this Hon'ble court may deem fit in accordance with the particular facts and circumstances of the case.
5. The petitioner accuses the respondent for delay but does not explain his delay in approaching the Court for which reason alone his tall PARITOSH KUMAR 2015.01.07 11:48 I attest to the accuracy and integrity of this document CWP No.26939 of 2014 5 claim deserves to be negated. What appears to have brought the petitioner to this Court is a decision of the division bench of this Court in LPA No.2240 of 2011, Malkiat Kaur v. State of Punjab and others decided on 1st August, 2012. This was a case where a widow claimed compassionate appointment on the death of her husband at the hands of terrorists in village Ghaniwal in the year 1992. She had approached Court in 1997 and it appears that during the pendency of that appeal/litigation, she was offered appointment by the Government on its own without any directions from Court. In these circumstances the appeal Court granted notional appointment to the petitioner retrospectively from the date of filing the writ petition to secure to the widow a right to pension by counting the back period notionally without any monetary benefits of salary. The Court relied on the policy decision of the Government providing employment to family members of the victims of terrorism etc. dated 24th April, 1986 and 8th August, 1996 which latter grant relief to dependent members of the family of decedent employees within 6 months from the date of death of Government employee/bread winner. The petitioner's father was a terrorist victim but not a government servant.
6. The Government in the case of Malkiat Kaur had initially objected that she did not apply within the stipulated period but the Court was of the view that a right had accrued in her favour to seek appointment on compassionate grounds for which a request was not necessary so long as the right existed. On the premise of the principle of accrued rights, coupled with the fact that the Government at its own had appointed her on 20th February, 2006 without Court interference then the same amounted to acceptance of the appellant's legitimate claim raised before this Court on 14th December, PARITOSH KUMAR 2015.01.07 11:48 I attest to the accuracy and integrity of this document CWP No.26939 of 2014 6 1997, i.e., the date when she approached the High Court. The appointment of the appellant in this manner was related back to the date of filing of the petition to secure her pension and other retiral benefits by including that period notionally in length of service required for pension. She was, however, denied arrears of salary/enhanced salary till 31st July, 2012 on principle of fairness and just play. The ante-dated appointment was on notional basis only to secure her means for financial survival.
7. I would have secured the same benefit to the petitioner without hesitation in view of Malkiat Kaur case but I am unable to apply its beneficial directions to the petitioner as he did not approach the Court like Malkiat Kaur did in 1997 and continued to agitate her rights. His rights, if any, stand extinguished by delay alone and inactivity for far too long. It cannot be held that memo dated 1st August, 2005 has to be understood as one which is perpetually in motion in the cosmic sense for the petitioner not to have sent a written reminder asking for information with respect to the status of his case after 2005 and till the filing of the present petition based on the decision in Malkiat Kaur case. His last documented representation placed on the writ file is dated 28th June, 2005 (P-5) on which the letter dated 1st August, 2005 came. Therefore, the period from 2005 to 2014 cannot be taken as a period where the petitioner was pursuing his rights as a reasonably prudent person might. The relief provided in article 226 of the Constitution is discretionary. In a claim barred by law of limitation and which is not a continuing obligation on the State as it may be in duty bound not to recognize would normally not clothe this Court with the armour of issuing writs in absence of a fundamental right to press in court by its PARITOSH KUMAR 2015.01.07 11:48 I attest to the accuracy and integrity of this document CWP No.26939 of 2014 7 wanton infringement. Nonetheless, and even so, the petitioner is no longer of employable age in public service as on today making relief at the hands of the writ court a far cry. The petition is sterile and wholly misconceived and is therefore liable to be rejected for want of an actionable right. The petition appears to be a wild shot in the dark as one which no one would ever take seriously and surely not in a court of law.
8. The petition is found without merit and is accordingly ordered to be dismissed.
(RAJIV NARAIN RAINA) JUDGE December 24, 2014 Paritosh Kumar PARITOSH KUMAR 2015.01.07 11:48 I attest to the accuracy and integrity of this document