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SHYAM NARAYAN PAL versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Shyam Narayan Pal v. State Of U.P. And Another - WRIT - A No. 4964 of 2004 [2007] RD-AH 2178 (9 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

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.

Dt.9.2.2007

Rkb.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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