Deepa Tiwari vs State Of Madhya Pradesh And Others

Gurpal Singh Ahluwalia, J

This petition under Article 226 of the Constitution of India has been filed seeking following reliefs:-

“(i) This Hon’ble Court may kindly be pleased to quash the impugned order 16.04.2021 contained in (AnnexureP-7).

(ii) To issue a writ in nature of mandamus directing the respondents to appoint the petitioner on compassionate basis against the vacant post of deceased employee, in the interest of justice.

(iii) Issue any other order the Hon’ble Court as it deemed fit may kindly be passed.”

It is submitted by the counsel for the petitioner that the father of the petitioner had died in harness on 27.12.2013. Thereafter, the brother of the petitioner applied for grant of appointment on compassionate ground. However, the said application was rejected.

Thereafter, the petitioner made an application for grant of appointment of compassionate ground on 27.2.2018. However, by the impugned order dated 08.1.2020, it was directed that the petitioner may participate in the Primary Teacher Eligibility Test, 2020 and in case if she fails to succeed in the said eligibility test, then she will not be entitled for appointment on compassionate ground on the post of Contractual School Teacher Grade-III.

It is submitted that finally the petitioner appeared in the Primary School Teacher Eligibility Test, which was conducted in the year 2020 and she was declared qualified. However, by the order dated 16.04.2021, her case for appointment on compassionate ground has been rejected on the ground that after rejection of the application of the brother of the petitioner for appointment on compassionate ground, a lumpsum compensation amount of Rs.1,00,000/- has been sanctioned and further the petitioner does not hold minimum qualification for appointment on the post of Laboratory Teacher or Primary Teacher.

It is submitted by the counsel for the petitioner that it is true that on the date of making application that is in the month of February, 2018, the petitioner was not holding all the minimum qualification but during pendency of the said application, she acquired all the minimum qualifications and accordingly, she submitted her D.Ed. certificate as well as Class-12th certificate.

Heard the learned counsel for the petitioner.

The father of the petitioner died in harness in the year 2013, the application of her brother Praveen Kumar Tiwari for appointment on compassionate ground was rejected by order dated 24.09.2015. The petitioner had not disclosed her marital status. She has not claimed that she is a spinster.

It is the case of the petitioner that non-grant of appointment on compassionate ground is violative of Article 16 of the Constitution of India. However, the counsel for the petitioner could not meet out the effect of rejection of similar application filed by her brother and payment of compensation of Rs.1,00,000/- in lieu of compassionate appointment. If a female child is seeking appointment on compassionate ground, then she is under obligation to disclose about her marital status.

The Supreme Court in the case of The Director of Treasuries in Karnataka and another Vs. Somyashree decided on 13th September, 2021 passed in Civil Appeal No.5122/2021 has held that the married daughter cannot be treated as a dependant on the deceased employee. Paragraph 8.2 and 8.3 of the judgment reads as under:

“8.2 Apart from the above one additional aspect needs to be noticed, which the High Court has failed to consider. It is to be noted that the deceased employee died on 25.03.2012. The respondent herein – original writ petitioner at that time was a married daughter. Her marriage was subsisting on the date of the death of the deceased i.e. on 25.03.2012. Immediately on the death of the deceased employee, the respondent initiated the divorced proceedings under Section 13B of the Hindu Marriage Act, 1955 on 12.09.2012 for decree of divorce by mutual consent. By Judgment dated 20.03.2013, the Learned Principal Civil Judge, Mandya granted the decree of divorce by mutual consent. That immediately on the very next day i.e. on 21.03.2013, the respondent herein on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground. The aforesaid chronology of dates and events would suggest that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained. Otherwise, as a married daughter she was not entitled to the appointment on compassionate ground. Therefore, looking to the aforesaid facts and circumstances of the case, otherwise also the High Court ought not to have directed the appellants to consider the application of the respondent herein for appointment on compassionate ground as ‘divorced daughter’. This is one additional ground to reject the application of the respondent for appointment on compassionate ground.

8.3 Even otherwise, it is required to be noted that at the time when the deceased employee died on 25.03.2012 the marriage between the respondent and her husband was subsisting. Therefore, at the time when the deceased employee died she was a married daughter and therefore, also cannot be said to be ‘dependent’ as defined under Rule 2 of the Rules 1996................”

Thus, it is clear that the married daughter cannot be said to be dependent on the deceased employee.

Be that whatever it may be.

Undisputedly, the father of the petitioner had expired in the year 2013 and the present petition has been filed in the year 2023, specifically when her claim for appointment on compassionate ground was rejected by the order dated 16.04.2021.

Since, the petitioner and her family members successfully survived for 10 years, therefore the delay in approaching the Court has certainly resulted in nullifying the basic cause of granting appointment on compassionate ground.

The Supreme Court in the case of The State of West Bengal vs. Debabrata Tiwari & Ors. by judgment dated 03.03.2023 passed in Civil Appeal Nos.8842-8855/2022 has held as under:-

“7.1.......

v. There is a consistent line of authority of this Court on the principle that appointment on compassionate grounds is given only for meeting the immediate unexpected hardship which is faced by the family by reason of the death of the bread earner vide Jagdish Prasad vs. State of Bihar, (1996) 1 SCC 301. When an appointment is made on compassionate grounds, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion, vide I.G. (Karmik) vs. Prahalad Mani Tripathi, (2007) 6 SCC 162. In the same vein is the decision of this Court in Mumtaz Yunus Mulani vs. State of Maharashtra, (2008) 11 SCC 384, wherein it was declared that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis.

vi. In State of Jammu and Kashmir vs. Sajad Ahmed Mir, AIR 2006 SC 2743, the facts before this Court were that the government employee (father of the applicant therein) died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was dismissed by the learned Single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. This Court remarked that the said facts were relevant and material as they would demonstrate that the family survived in spite of death of the employee. Therefore, this Court held that granting compassionate appointment after a lapse of a considerable amount of time after the death of the government employee, would not be in furtherance of the object of a scheme for compassionate appointment.

vii. In Shashi Kumar, this Court speaking through Dr. D.Y. Chandrachud, J. (as His Lordship then was) observed that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. That the basis of the policy is that it recognizes that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. That it is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. .....

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 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 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.

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 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)

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.

* * *

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 Petitioners for appointments on compassionate grounds, be considered or entertained.”

It is well established principle of law that appointment on compassionate ground is not right but it is a concession to the family members of the deceased/bread earner.

Under these circumstances, this court is of the considered opinion that no case is made out warranting interference.

Accordingly, the petition fails and is hereby dismissed.