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Shyam Narayan Pal v. State Of U.P. And Another - WRIT - A No. 4964 of 2004  RD-AH 2178 (9 February 2007)
Court No, 29
Civil Misc. Writ Petition NO. 4964 of 2004
Shyam Narayan Pal Vs. State of U.P. & others
Hon. Ran Vijai Singh,J.
The petitioner claims himself to be adopted son of one Sri Jagannath Shahi who was Assistant teacher in Junior High School Uruwa Bazar, district Gorakhpur. Late Shahi died in harness. After his death the petitioner has given an application for appointment on compassionate ground claiming himself to be adopted son of Late Shahi. On this appointment letter was issued to the petitioner on 30.7.1996 and pursuant to the same he joined and had been working. Later on some complaint was made where it was stated that the petitioner was not adopted son of late Shahi. Consequently his appointment was cancelled on 21.8.1996 by the Basic Education Officer, Gorakhpur, district Gorakhpur. The petitioner has challenged the aforesaid order in writ petition No. 31480 of 1996. This writ petition was dismissed on 27.9.1996 with liberty to the petitioner to file declaratory suit . Thereafter the petitioner filed declaratory suit No.638 of 1996 impleading Smt. Savitri Devi wife of late Jagannath Shahi as defendant. In the Suit a written statement was filed on behalf of the sole defendant in which the claim of the petitioner was admitted. Consequently the suit was decreed on 7.7.2001. A copy of the judgment and decree is on record of the writ petition through annexure-6 of the writ petition. Counsel for the petitioner submits that no appeal has been filed against this judgment and decree passed by the Court below. The Counsel for the petitioner has further submitted that immediately after the decree in the suit, an application was filed on 6.8.2001 before the District Basic Education Officer for considering his case. Thereafter He has given several representation but no order was passed by the District Basic Education Officer. Aggrieved from the same the present writ petition has been filed with the following prayer:-
'(a) issue a writ, order or direction in the nature of Mandamus directing the respondent No.2 to decide the representation dated 30.12.2003 ( Annexure No.9 to this writ petition) within a reasonable period of time;
(b) issue any other suitable writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case;
(c) Award the costs of this writ petition in favour of the petitioner against the contesting respondents.'
In this writ petition on 10.2.2004 this Court has granted four weeks time to file counter affidavit but no counter affidavit has been filed . In the order dated 10.2.2004 it is mentioned that one Sri K.K. Mishra has accepted notice on behalf of respondent No.2 but from perusal of record it transpires respondent No.2 is the District Basic Education Officer who is under the direct control of State Government and for State government office Sri Mishra has no authority to accept notice unless he is so authorised by by the State Government.
I have heard learned counsel for the petitioner and learned Standing counsel for the State respondents. Counsel for the parties are agreed to dispose of the writ petition at this stage even in absence of counter affidavit on the legal premises only.
Learned Standing Counsel appearing for the State respondents raised preliminary objection that in view of the various decisions of this Court as well as decision of the Apex Court no appointment can be offered after a long lapse of time. As the purpose of the Rule of appointment on compassionate ground is to save the family members of the deceased from financial crises which is fallen on the family on the death of the employee and it can not be said that financial crunch is surviving even today. Further this petition suffers from laches and should be dismissed.
In reply to the objection raised by the learned Standing counsel. The learned counsel for the petitioner has made the following submissions:-
(i) His appointment on compassionate ground was made on 30.7.1996 and it was cancelled ex-parte on 21.8.1996. Thereafter he has filed writ petition challenging the order dated 21.8.1996 which was dismissed on 27.9.1996 with liberty to the petitioner to file declaratory Suit. Now after decree of the suit it cannot be disputed that petitioner is the son of late Shahi and now the respondents have to only revive his appointment which was given to him through appointment letter dated 30.7.1996.
(ii) Even after the decree in the suit dated 7.7.2001 the respondents are sitting tight over the matter and not taking any decision due to which the petitioner is suffering a lot as his financial position has through out been tight and is continuing even today which is against the sprit of the Rule of appointment on compassionate ground.
(iii) It is not a case of late consideration of petitioner's appointment on compassionate ground but it is a case where the appointment has already been made but cancelled on flimsy ground, therefore, the principle of delay in appointment after long lapse of time is not applicable here. His right of appointment is intact unless it is otherwise held by the authority.
(iv) The petitioner has been put to litigation by the respondent and suffered for the inaction of the respondent in not deciding his representation made after decision of the Suit in the year 2001 and thereafter petitioner has been running from pillor to post but nothing has been done and now they are coming with the case that there are laches in filing the writ petition. The respondent cannot be permitted to take advantage of their own inaction.
First of all the point No.4, the objection with regard to the laches is necessary to be considered as if Court finds that there are laches in filing the writ petition then there is no need to decide the other question.
From the perusal of the date and events it is not in dispute that the petitioner was appointed on 30.7.1996 on compassionate ground and his appointment was cancelled on 21.8.1996 by the Basic Education Officer, Gorakhpur. This order was challenged through writ petition No.31480 of 1996 which was dismissed on 27.9.1996 with liberty to file declaratory Suit. Thereafter the petitioner has filed suit which was decreed on 7.7.2001 and soon after the decree he has filed representation on 6.8.2001 before the District Basic Education Officer for considering his case. Thereafter he has given several representations but no order has been passed. Hence writ petition has been filed. Considering the above circumstance it is very difficult to hold that the petition sufferers from laches as the laches which has occurred is the out come of the in action of the respondents in not deciding the petitioner's representation well within time.
I have considered the submission of the learned counsel for the parties. So far as the question of appointment after long lapse of time is concerned I find force in the argument of the learned counsel for the petitioner that the appointment letter was already issued in his favour long back in the year 1996 and he has joined also but after cancellation of the appointment and challenge of that order in writ petition this Court has given liberty to file declaratory suit, therefore, the petitioner cannot be deprived from the fruit of the decree otherwise the purpose of filing writ petition and declaratory Suit will be frustrated. The purpose of the Rule is to help the family of the deceased not to harass in litigation.
So far as the argument of learned Standing counsel with regard of appointment after long lapse of time is concerned I have already held that this is not covered under that category as his appointment has already made in the year 1996 but for the sake of argument even if it is taken into consideration at this stage it is to be seen whether the delay has occurred on the part of the petitioner or on the part of the respondents. This Court has got an occasion to consider this aspect of the matter in writ petition No. 11507 of 2006, Surendra Prasad Gond Vs. Union of India and others decided on 27.11.2006 and made the following observation:-
'While considering the aspect of long lapse of time, it has to be seen that during this long time how the family has survived. The distress, the pain, the misery and the mental agony which the family has faced during this time has also to be weighed by the authorities particularly in the circumstances where the laps is on their part. Mere survival for a long time is not sufficient for the purposes of ignoring the appointment under dying-in-harness Rules. The survival is the law of nature, a person will survive irrespective of the fact whether he is employed or not. It is very often said that time and tide wait for none. It will pass away in its own way. There are many persons who are not in employment and without means even then they are surviving. To my mind, while considering this type of a problem the paramount consideration should be the following of law in its true, letters and sprit meaning thereby the quick and prompt steps has to be taken by the responsible persons under the Rules while considering the appointment under dying-in-harness rule. The delay in considering such appointment will defeat the purpose of the Rule and put the family of deceased in distress which is not the sprit of Rule and intention of the legislature ( the maker of the Rule)'.
Considering the facts and circumstances of the case, it is provided that the respondents may consider the case of the petitioner in view of the decree passed by the Civil Court. In this regard the petitioner may file a fresh representation before respondent No.2. In case any such representation is filed, it may be decided by respondent No.2 by a speaking order, if possible, within two months from the date of receipt of the representation. The petitioner will file certified copy of this order, other necessary documents and a duly stamped self-addressed envelope along with the representation. The respondent No.2 after taking decision will communicate the same to the petitioner.
With this observation the writ petition is disposed of.
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