Kiran Wala and Another vs State and Others

Nirmal Singh, J.—Petitioners are the widow and son of late Sh. Sodagar Mall, who was working as an Assistant in Electric & Maintenance

Wing of Power Development Department and died in harness in the year 1997. The petitioners are seeking compassionate appointment.

The case set up by the petitioners is that petitioner No. 1 who is the widow of deceased employee, applied to the respondent authorities within

the specified period of limitation for being appointed on compassionate grounds. A copy of the representation made to the respondents has been

placed on record as Annexure B. However, on the said application, there is no mention of the date on which it was submitted. The further case set

up by the petitioners is that another application was filed before the respondents on 13th of May'04, vide which the petitioner No. 1 requested the

authorities concerned to consider the claim of petitioner No. 2, who is studying in 12th class, for being appointed on compassionate grounds in

terms SRO 43 instead of considering the case of petitioner No. 1.

The respondents after considering the case of the petitioners, have passed an order dated 16th of May'01, (Annexure G), stating therein that the

compassionate appointment case of petitioner No. 1-Kiran Wala, does not come under the purview of SRO 43 of 1994. It is this order which is

the subject matter of challenge in the present petition.

The grievance of the petitioners is that even though, the petitioner No. 1 had applied to the respondent authorities well within time and thereafter,

kept on representing before the said authorities, her case was not considered and now vide impugned order, the said authorities have wrongly

rejected the claim of the petitioner No. 1. It is further stated that even the case of petitioner No. 2 who has attained majority and is studying in 12th

class, has not been considered by the respondent authorities for appointing him on compassionate grounds.

After hearing learned Counsel for the petitioners, I am of the view that petition is liable to be dismissed on the ground of delay and laches.

Admittedly, the husband of petitioner No. 1 and father of petitioner No. 2 died in harness in the year 1997. Petitioner No. 2 was a minor at that

time and in terms of SRO 43 of 1994, and was not eligible to be considered for appointment on compassionate grounds. In the present case, the

application on behalf of petitioner No. 2 seeking compassionate appointment was made in May'04 i.e. after about seven years of the death of the

deceased employee. Therefore, the case of petitioner No. 2 cannot be directed to be considered for compassionate appointment after about seven

years of death of his father as the authorities concerned in this regard cannot be directed to wait for years together for the dependant of the

deceased employee to become major and thereafter consider his/her claim for compassionate appointment.

So far as the case of petitioner No. 1 is concerned, it has been averred in the writ petition that she applied before the authorities for seeking

compassionate appointment within the specified period of limitation. The case of said petitioner was rejected by the respondents vide impugned

order passed in May'01. The present petition has been filed in Sept'07 i.e. after about more than six years of passing of order impugned by the

respondents. The said petition, as such, is barred by limitation.

In State of Uttaranchal and Ors. v. Pitamber Dutt Semioal (2005) 11 SCC 477, the writ petition was filed after 29 years by the petitioner

challenging the recorded date of birth.

The Apex Court in the said case held as under:

...Be that as it may, even dehors the said rule, we are of thye opinion that the plea of the respondent that the date of birth was wrongly recorded

was highly belated. He joined service in 1964, the service book was prepared in 1965 and according to the appellant he has signed the said

service book at least on three occasions. In any case, the plea of the wrong recording of the age in the service book has been taken nearly thirty

years after the service book was prepared. In our opinion, the Division Bench was in error in ignoring the provisions of the said Rule 2 and even

otherwise, in the facts of the case, there was no occasion for the High Court to have interfered with the decision of the appellant.

In Cheripalli Madar v. Assistant Division Engineers and Ors. (2005) 11 SCC 546 the writ petition was filed after three years of order impugned

passed by the authorities concerned against the appellant. The Apex Court in para 2 of the judgment in the said case, observed as under:

The petition was actually filed after a delay of 3 years, naturally the High Court was not inclined to interfere in the matter because of the laches....

In S.D.O. Grid Corporation of Orissa Ltd. and Others Vs. Timudu Oram, , it has been held as under:

...The subsequent suit or writ petition would not be maintainable in view of the dismissal of the suit. The writ petition was filed after a lapse of 10

years. No reasons have been given for such an inordinate delay. The High Court erred in entertaining the writ petition after a lapse of 10 years. In

such a case, awarding of compensation in exercise of its jurisdiction under Article 226 of the Constitution cannot be justified....

In the present case, as noticed above, the order impugned was passed in May'01, rejecting the claim of petitioner No. 1 for appointing her on

compassionate grounds. The said petitioner did not challenge the aforesaid order for about six years and instead preferred another application in

May'04, seeking compassionate appointment for her son-petitioner No. 2. Therefore, petitioner No. 1 cannot have any grievance at such a belated

stage and the writ petition on her behalf shall stand dismissed on the ground of delay and laches.

It would be pertinent to mention here that the appointment on compassionate ground cannot be claimed as a matter of right as an alternate

source of entry into service. In such case, the object is to enable the family to get over sudden financial crises which occurs due to the death of

bread earner of the family. But even such appointments have to be made in accordance with the rules, regulations or administrative instructions

taking into consideration the financial condition of the family of the deceased who died in harness as has been laid down by the Apex Court in the

case of Umesh Kumar Nagpal Vs. State of Haryana and Others, .

In State of U.P. and Others Vs. Paras Nath, , the Apex Court observed as under:

...The purpose of providing employment to the dependant of a government servant dying in harness in preference to anybody else is to mitigate

hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such

appointments are permissible on compassionate grounds provide there are rules providing for such appointments. None of these considerations

can operate when the application is made after a long period of time....

In Haryana State Electricity Board Vs. Krishna Devi, , where the application was made after eight years of the death of deceased employee,

the Apex Court held as under:

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. The High Court did not consider the position of law and

allowed the writ petition relying on an earlier decision of the High Court.

In view of the above settled position of law and as the application was filed after eight years of the death of her husband, we are of the opinion that

the impugned order is not sustainable. If the impugned order is allowed to stand, the purpose of making appointment on compassionate ground

would frustrate....

In General Manager (D and PB) and Others Vs. Kunti Tiwary and Another, , where the family of the deceased employee was getting the

pension and other retiral benefits and the case of respondent in the aforesaid case was rejected by the employer on the ground that the family of

the deceased was not facing any financial hardship, the Apex Court observed as under:

On the basis of the criteria as recommended by the Indian Banks' Association and adopted by the appellant Bank, it could not be said that the

family of the late KN Tiwary had been left in ""penury"" or without any means of livelihood"". The particulars of their income have been noted in their

application and it certainly could not be said on the basis thereof that the respondents were living hand to mouth. The Division Bench erred in

diluting this criteria of penury to one of ""not very well-to-do.

In the present case, as observed above, the case of Petitioner No. 2, who was minor at the time of death of his father and was not eligible in

terms of SRO 43 of 1994 cannot be directed to be considered for compassionate appointment after ten years of death of his father.

The order impugned in the present case, as noticed above, was passed in May'01, rejecting the claim of the petitioner No. 1 for

compassionate appointment. The said order was not challenged for more than six years. Therefore, this petition, suffers from delay and laches and

even otherwise, when the petitioner No. 1 was not prompt enough to challenge the action of respondents for more than six years, it cannot be said

that the family of the petitioners is facing any financial hardship. Had it been so, the petitioner No. 1 would have challenged the order impugned

immediately after the same was passed by the respondents, but the same has not been done.

Therefore, the claim of the petitioners for compassionate appointment cannot be directed to be considered at this belated stage. For the

reasons mentioned above, this petition is found to be without merit and is dismissed in limine.