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SMT. SOSAN LAVINIYA AND ANOTHER versus UNION OF INDIA AND ANOTHER

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Smt. Sosan Laviniya And Another v. Union Of India And Another - WRIT - A No. 11035 of 2003 [2003] RD-AH 89 (9 April 2003)

 

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

A..F.R.

COURT NO. 38

CIVIL MISC. WRIT PETITION NO 11035 Of 2003

Smt Sosan Laviniya & anr. -----            Petitioners

Versus

Union of India & anr. -----         Respondents.

--------------

Hon'ble Dr. B.S.Chauhan, J.

Hon'ble Ghanshyam Dass, J.

(Delivered by Hon'ble Dr. B.S.Chauhan, J.)

This writ petition has been filed against the judgment and order of the Central Administrative Tribunal, Allahabad Bench dated 10.12.2002 by which the delay in filing the application has not been condoned, more so, the claim of the petitioner for employment on compassionate ground has been rejected being raised at a belated stage.

Facts and circumstances giving rise to this case are that one Anthony Briganza had been serving the respondent railways and died in harness on 29.7.1989. As there has been some dispute regarding his succession for the reason that the said deceased employee in his statement dated 28.1.1977 had stated that the petitioner was not his wife and he had no relation with her. Disputes regarding succession of the retiremental benefits etc. of the decease employee in Case No. 232 of 1992 were decided by the District Judge, Jhansi in favour of the petitioner vide judgment and order dated 15.12.1993. Against the said order an appeal was preferred by the aggrieved party which was dismissed vide order dated 28.4.1997. Petitioner filed an application first time seeking employment for her son-petitioner no. 2 on 15.9.1998 (Annex. ''9'). Second application for same relief was filed on 24.10.1998 (Annex. ''10'). The authority concerned vide order dated 19.12.1998 (Annex.''11') rejected the said application on the ground that as per their circulars etc. where an employee keeps more than one wife, second wife along with her children may share the dues with other widow due to the court's order or otherwise on merit of each case but compassionate employment cannot be granted to the children of the second wife. Being aggrieved and dissatisfied, petitioner along with her son filed the O.A.S. before the Tribunal along with an application for condonation of delay on 7.3.2002. The said application has been rejected on the ground of delay of more than three years More so observations have been made that compassionate employment must be sought within reasonable time from the death of the employee and it cannot be claimed after expiry of 13 years vide judgment and order dated 10.12.2002. Hence this petition.

Learned counsel for the petitioner has submitted that it was a fit case where the delay ought to have been condoned by the Tribunal considering the facts and circumstances of the case as the matter remained pending before a civil court for a long time.

There is no force in the contention raised by the learned counsel for the petitioner for the reason that civil court has adjudicated upon the matter and decided finally on 15.12.1993 though the appeal was decided on 28.4.1997. There was no satisfactory explanation of delay for more than three years even after the  order of the appellate court.

The Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & ors., AIR 1987 SC 1353, observed  that when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be  preferred for the reason  that  other side cannot  claim  to have vested  right in injustice being done because of non-deliberate delay.

The law of limitation is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation).   Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

Time-barred cases should not be entertained by Courts as the rights which  have accrued to others  by reason of delay in approaching  the  Court, cannot be allowed to  be disturbed unless there is a reasonable explanation  for the delay. The vested rights of the parties should not be disrupted at the instance of a person who is a guilty of culpable negligence. (Vide R.S.  Deodhar Vs. State of Maharashtra,  AIR 1974 SC 259;  and K.R. Mudgal Vs.  R.P.   Singh, AIR 1986 SC 2086).  The  Privy Council in General  Fire   and  Life  Assurance Corporation  Ltd. Vs. Janmahomed Abdul  Rahim, AIR 1941  PC  6, relied upon the writings of  Mr. Mitra in  Tagore Law Lectures 1932 wherein it has been said   that "a law of limitation and prescription  may  appear to operate harshly  and unjustly  in  a particular case, but if  the  law provides  for a limitation, it is to be  enforced even at the  risk  of  hardship to  a  particular party as the Judge cannot, on applicable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by law."

In N. Balakrishnan Vs. M. Krishnamurthy,  (1998) 7 SCC 133, the Apex Court explained the scope of limitation and condonation of delay, observing as under:-                                                                

"The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for   approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury   so suffered. The law of limitation is thus founded on public policy."  

In Smt. Prabha Vs. Ram Parkash Kalra, 1987 (Suppl) SCC 338, the Supreme Court took the view that the Court should   not   adopt   an injustice-oriented approach in rejecting the application for condonation of delay

In Vedabai alias Vaijayanatabai Baburao Patil Vs.Shantaram Baburao Patil & ors, JT 2001 (5) SC 608, the Apex Court made a distinction in delay and inordinate delay observing as under:-  

"In exercising discretion under Section 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other wise will be a relevant factor so the case   calls   for    a more cautious approach...."    

In P.K. Ramachandran Vs. State of Kerala & Anr., (1997) 7 SCC 556, the Hon'ble Apex Court held as under:-        

"Law of limitation   harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation as equitable   grounds. The   discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained."

In New India Insurance Co. Ltd. Vs. Smt. Shanti Misra, AIR 1976 SC 237 Supreme Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Inder Singh Vs. Kanshi Ram, AIR 1917 PC 156, it was observed that true guide for a Court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari, AIR 1969 SC 575, the Supreme Court held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 of the Limitation Act is proved, the application must not be thrown out or any delay cannot be refused to be condoned. Similar view has been reiterated in State of West Bengal Vs. Administrator Howrah Municipality, (1972) 1 SCC 366.

In State of Kerala Vs. E.K.Kuriyipe, (1981) Supp SCC 72, it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case. In Smt Milavi Devi Vs. Dina Nath, (1982) 3SCC 366, it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation. The Supreme Court under Art. 136 can reassess the ground and in appropriate case set aside the order made by the High Court or the Tribunal and remit the matter for hearing on merits. It was accordingly allowed, delay was condoned and case was remitted for decision on merits.

In O.P.Kathpalia Vs. Lakhmir Singh, AIR 1984 SC 1744, the Hon'ble Supreme Court held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.

In G. Ramegowda,  Major  &  ors.  Vs. Special Land   Acquisition   Officer,  Bangalore, AIR 1988 SC 897,  it  was  observed  that  the expression  'sufficient  cause'  must  receive  a liberal construction so as to advance substantial justice and  generally  delay in  preferring  the appeal is required to be condoned in the interest of justice   where   no   gross   negligence   or deliberate  inaction  or  lack  of  bonafides  is imputable  to  the party seeking  condonation  of delay.

In Ram Nath Sao Vs. Gobardhan Sao & ors (2002) 3 SCC 195, the Apex Court observed as under:

"Thus it becomes plain that expression ''sufficient cause' within the meaning of Section 5 of the Act --------should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is improbable to a party. In a particular case whether explanation furnished would constitute ''sufficient cause' or not will depend upon facts of each case.-----while considering the matter, Courts have to strike a balance between resultant effect of the order if it is going to pass upon the parties either way."

Thus, while deciding such an application justice oriented approach is required to be adopted.

Justice is the virtue, by which the society/ court/ Tribunal gives to a man what is his due, opposed to injury or wrong.  (Wharton's Law Lexicon, 1976 Reprint   Edn.,  p. 552). Justice is an act of rendering what is right and equitable towards one who has suffered a wrong. Therefore, while tempering   the justice with mercy, the Court has to be very conscious that it has to do justice in exact conformity to some obligatory law for the reason that human actions are found to be just or unjust as they are in conformity with or in opposition to the law.  In Delhi Administration  Vs. Gurdip Singh  Uban  & ors., (2000)  7  SCC 296, the Hon'ble Apex  Court observed as under:-                              

"The words 'justice' and 'injustice', in our view,. are sometimes loosely  used and  have different meanings to different persons,  particularly to those  arrayed on  opposite sides.....  Justice  Cardozo said,  'The  Web is tangled and  obscure, shot  through with a multitude of  shades and  colours,  the skeins  irregular  and broken.   Many hues that seems to be simple, are found, any when analysed, to be complex and uncertain blend. Justice itself, which we are wont to appeal to as a test as well as an ideal, may mean different things to different minds and at   different   times.  Attempts to objectify its standards or  even   to describe   them,   have    never   wholly succeeded."   (Selected     Writings   of Cardozo, pp 223-24;  Fallon Publications, 1947)."  

                               

Therefore, the Court must consider all pros and cons and inconvenience caused to the other side as well as to the Courts which are over-burdened with this kind of litigations for the fault of the litigants not taking proper care in due time.    

Thus in view of the above as the petitioner has filed the claim petition after inordinate delay and no satisfactory explanation had been furnished. Application for condonation of delays contains the details of the dispute before the civil court but there is no explanation as to why the Tribunal could not be approached within limitation or reasonable period even after dismissal of the appeal on 28.4.1997. It was a case of gross negligence on the part of petitioners. No fault can be found with the order impugned and the claim petition has rightly been rejected.

Even otherwise, husband of the petitioner no. 1 and father of petitioner no. 2 died on 29.4.1998. His application for compassionate employment had been filed on 15.9.1998, i.e., after expiry of about 9,1/2 years. In  fact,  every  appointment  in  public office must  be  made in strict adherence to  the mandatory  requirement  of Articles 14 and 16  of the Constitution.    An exception   to   provide employment  on  compassionate   ground  has  been carved out  in  order  to  remove  the  financial constraints  on the grieved family which has lost its bread-earner.   Mere  death of  a  Government employee  in harness does not entitle the  family the source   of   livelihood.     The   Competent Authority  has to examine the financial condition of the family  of the deceased employee and it is only if it   is  satisfied  that   but  for   the provisions  of employment, the family will not be able to meet  the  crisis,  that a job is  to  be offered to  the  eligible member of  the  family. Thus, the consistent view taken by the Court had been that compassionate  employment   cannot  be claimed as  a  matter  of right,  not  being  the vested right.

In  Sushma  Gosain Vs.  Union of India  & ors., AIR  1989  SC 1976, the Apex Court held  as under:-

"It  can be stated unequivocally that  in all    claims    for    appointment    on compassionate ground, there should not be any delay in appointment.  The purpose of providing  appointment  on  compassionate ground is to mitigate the hardship due to death  of the bread-earner in the family. Such  appointment  should, therefore,  be provided immediately to redeem the family in distress.  It is improper to keep such case  pending for years.  If there is  no suitable    post      for    appointment, supernumerary  post should be created  to accommodate the applicant."

The aforesaid judgment was approved and the principle laid down therein was reiterated by the Hon'ble Supreme Court in Smt.  Phoolwati Vs. Union of India & ors., AIR 1991 SC 469.

In  Umesh  Kumar  Nagpal  Vs.   State  of  Haryana &  ors.,  (1994) 4 SCC 138,  the  Hon'ble  Apex Court has considered the nature of the right  which a dependant  can  claim    while   seeking  employment  on  compassionate ground.  The  Court  has observed as under:-  

"It  appears  that there has been a  good  deal  of obfuscation on the issue.  As  a  rule,  appointment in the public services  should  be made strictly on the basis  of  open  invitation  of   applications   and merit.   No other mode of appointment nor any  other consideration is  permissible. Neither  the  Governments nor the  public authorities  are at liberty to follow any other    procedure    or     relax    the qualifications laid down by the rules for the  post.  However, to this general rule which is to be followed strictly in every case,  there  are some exceptions  carved out  in  the interest of justice  and  to meet  certain  contingencies.   One  such exception  is in favour of the dependants of  an  employee  dying  in  harness  and  leaving  his family in penury and without any  means of livelihood.  In such cases, out  of  pure humanitarian  consideration  taking  into consideration the fact  that unless  some  source  of  livelihood   is  provided, the family would not be able to make  both ends meet, a provision is made in   the   rules   to   provide   gainful  employment  to  one of the dependants  of the deceased who may be eligible for such employment.  The whole object of granting compassionate  employment  is,  thus,  to enable the family to tide over the sudden crisis.   The  object  is not to  give  a  member  of such family a post much less a post for post held by the deceased.  What is  further, mere death of an employee in harness  does  not entitle his family  to such   source   of    livelihood.     The  Government   or  the   public   authority  concerned  has  to examine the  financial condition  of the family of the  deceased and  it  is only if it is satisfied  that but  for the provision of employment, the family  will  not  be able  to  meet  the crisis that a job is to be offered to the eligible member of the family.......

.......The  favourable treatment given to such  dependant of the deceased  employee in  such posts has a rational nexus  with the  object  sought to be achieved,  viz. relief  against  destitution.   No  other posts  are  expected  or required  to  be given  by the public authorities for  the purpose.   it must be remembered in  this connection  that as against the destitute family   of  the   deceased,  there   are millions  of  other  families  which  are equally,  if  not more,  destitute.   The exception  to the rule made in favour  of the family of the deceased employee is in consideration of the services rendered by him  and the legitimate expectations, and the  change in the status and affairs  of the  family  engendered by the  erstwhile employment    which       are    suddenly upturned....   Unmindful  of  this  legal position,  some  Governments  and  public authorities    have      been    offering compassionate  employment sometimes as  a matter  of  course  irrespective  of  the financial  condition of the family of the  deceased.......   The  decision does  not justify  compassionate employment  either as  a  matter  of  course....   The  only ground  which  can justify  compassionate employment is the penurious condition of the deceased's     family......    The consideration  for such employment is not  a  vested right....  The object being  to enable  the  family  to   get  over   the financial crisis.  (Emphasis added).    

The  same  view  has been  reiterated  in Jagdish Prasad  Vs.  State of Bihar, (1996) 1 SCC 301;  State  of Bihar Vs.  Samsuz Zoha, AIR  1996 SC 1961;  Himachal Road Transport Corporation Vs. Dinesh Kumar,  (1996)  4 SCC 560;  and  Hindustan Aeronautics  Ltd.   Vs.  A.  Radhika  Thirumalai, (1996) 6 SCC 394.  It has categorically been held that compassionate  employment cannot be  claimed as a matter of course not being a vested right.  

In Haryana State Electricity Board & Anr. Vs.  Hakim Singh, JT 1997 (8) SC 332, the Hon'ble  Apex Court  placed  reliance upon  the  judgments  referred to above and observed that the object of  providing for compassionate employment is only to  relieve the  family  from   financial   hardship, therefore,  an 'ameliorating relief should not be taken as   opening   an   alternative   mode   of  recruitment to public employment.  

Similarly,  in Haryana State  Electricity Board Vs.  Naresh Tanwar & Anr., (1996) 8 SCC 23, the Hon'ble  Apex  Court reiterated and  followed the law laid  down in Umesh Nagpal's case (supra) and directed  the applicants involved therein  to  apply for  employment on compassionate ground "by giving full  details of the family  circumstances and the economic conditions."        

In  Director  of Education (Secondary)  & Anr.  Vs.   Pushpendra Kumar & ors., (1998) 5 SCC 192, the Apex Court has observed as under:-      

"The  object  underlying a provision  for grant  of compassionate employment is  to  enable   the  family  of   the   deceased  employee  to tide over the sudden  crisis  resulting   due   to     death   of   the  bread-earner which has left the family in  penury   and   without   any   means   of livelihood.   Out  of   pure  humanitarian  consideration  and  having regard to  the fact   that   unless   some   source   of livelihood  is provided, the family would not be able to make both the ends meet, a provision  is  made  for  giving  gainful appointment  to one of the dependants  of the deceased who may be eligible for such appointment.   Such a provision makes a departure from the general provisions providing  for appointment on the post by following  a particular procedure.  Since such  a  provision   enables  appointment being  made  without following  the  said procedure,  it  is  in the nature  of  an exception  to the general provisions.  An exception   cannot subsume    the   main provision to which it is an exception and thereby nullify the main provision.  Care has,  therefore,  to  be   taken  that  a  provision  for  grant   of  compassionate employment,  which is in the nature of an exception  to the general provision, does not  unduly  interfere with the right  of other   persons  who   are  eligible  for appointment  to  seek employment  against  the  post which would have been available to  them, but for the provision  enabling appointment  being made on  compassionate grounds  for the dependant of a  deceased employee." (Emphasis added).        

In Chairman, Bihar Rajya Vidyut Board Vs. Chhathu Ram,  (1999)  5  SCC   673,  the  Hon'ble Supreme Court  held  that  in   absence  of   the statutory provisions, an adopted son cannot claim appointment  on compassionate ground.  Similarly, in General Secretary, American Express Bank Union Vs.  American Express Bank Ltd., (1999) SCC (L&S) 1235, the  Hon'ble  Supreme Court held that  mere adoption  of recruitment policy in pursuance of a Settlement between the union and the employer for compassionate   employment  of    the   specified categories  of  relations of employees  on  their retirement,  death  or  incapitation,  cannot  be enforced  unless  adopted  by   the  employer  by  bringing  the  Standing  Order/  Statutory  Rule. similarly, in West Bengal State Electricity Board  Vs.  Sameer  Kumar Sarkar, ( 1999) 7 SCC 672, the   Hon'ble Apex   Court   held   that   embargo   on  compassionate  employment  in  case of  death  of employee  within two years prior to reaching  the age of superannuation, was not invalid.          

Undoubtedly,  in  Balbir Kaur Vs.   Steel Authority  of India & ors., (2000) 6 SCC 493, the Hon'ble Supreme  Court  held that appointment  on  compassionate ground is not a vested right but it should not  be denied in deserving cases for  the  reason that  it would be tantamount to denial  of  economical and social justice as enshrined in the  Constitution and law must be, in its adaptability  and flexibility,   applied  depending    upon   a situation for the benefit of the society.    

In Sanjay Kumar Vs.  State of Bihar, JT 2000 (10) SC 156, the Hon'ble Supreme Court again reiterated   that the  purpose   of  the   rules  providing for compassionate employment is only to  enable the  family  of the deceased  employee  to  tide over sudden crisis resulting due to death of  the bread-earner  who  had  left  the  family  in  puniary and  without any means of livelihood, but  such an appointment  cannot  be  held   as  if  a  reservation  for  the dependents of the  deceased  Government servant who died in harness.           In  Regional Manager, A.P.S.R.T., Nellore Vs.  C.M.   Pawana Kumari, 2001 AIR SCW 4779, the Apex Court held that direction cannot be  issued to appoint  a  person  on  compassionate ground dehores the scheme framed by the employer nor the court has  a power to modify the scheme or  rules framed in  this  regard.  Similar view has been reiterated in the Divisional Manager, A.P.S.R.T.C.   Vs. K. Radha Krishna, 2001 AIR SCW 5190  while deciding a case of appointment on compassionate ground under Re-employment Children Quota provided  under the Circular issued by  the Corporation.

In  Surya  Kant  Kadam   Vs.   State   of  Karnataka  &  ors.,  AIR 2001 SC 3145,  the  Apex Court held  that  in  absence  of  any  statutoryrules, appointment on compassionate ground can be governed   by  the   executive  instructions  and in spite of  the  fact that the said  instructions may not have  a  statutory  force, the  same  are bound to be observed by the employer.

In  State  of Haryana & ors.  Vs.   Vipin Kumar, AIR 2002 SC 2867, the Apex Court held that compassionate  employment is not given to offer a status on  a  family and no person can  claim  to have the  same  post  and   if  rules/  executive instructions  provide  that appointment shall  be made on one  stage below, it can be made not only next below  post  but to any other lower post  as the rules  provide only that the appointment  may  be offered  at least  one step below the post  the deceased  Government was holding and there can be no bar in  offering  still a lower post  for  the reason that   the  purpose  of   appointment   on compassionate ground is to redeem the family from financial  constrains and not to confer any other benefit or status.

In  Steel  Authority of India  Ltd.   Vs.  Awadesh Singh,  (2001)  10 SCC 621,  the  Hon'ble Supreme Court  held  that if rule  prohibits  an appointment  on compassionate ground if any other  member of  the family is already in service,  the said rule is valid and no direction can be issued against such a scheme.

While reiterating the purpose of making appointment on compassionate ground, the Hon'ble Supreme Court, in Haryana State Electricity Board Vs.  Krishna  Devi,  2002 (2) LLJ 773, held  that the main  object behind giving such employment is to provide immediate financial help to the family of the deceased   employee.    Such   appointment cannot be   made   in  absence    of   Rules   or Instructions.   Application for such employment must be made within the period prescribed by the Rules/Instructions. Application made at a belated stage  cannot  be   entertained  for  the reason that  by  lapse  of time, the  purpose  of making such appointment stands evaporated.

Thus, it is evident that such employment cannot be claimed as a vested right. The  concept  of  vested right  has  been explained  by the Apex Court in Bibi Sayeeda  Vs. State of  Bihar, AIR 1996 SC 1936, wherein it has been described as under:-    

"The word 'vested' is defined in Black's  Law  Dictionary  (6th  Edition)  at  page  1563,  as  'vested',   Fixed;    accrued; settled;   absolute;   complete.   Having  the  character or given in the rights  of absolute ownership;  not contingent;  not subject  to  be defeated by  a  condition  precedent.' ,Rights are 'vested'  when  right  to enjoyment,    present   or prospective,  has become property of some  particular  person or persons as  present interest;   mere  expectancy   of  future benefits,  or  contingent interest in  property  founded  on anticipated continuance  of  existing laws, does  not constitute  vested rights. In Webster's Comprehensive Dictionary  (International Edition) at page   1397,  ''vested' is defined as (Law held by a tenure subject  to no contingency;     complete; established  by law as a permanent right; vested interest."                        

Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned.  Vested right can arise from contract, statute or by operation of law.

The case requires to be examined in the light of aforesaid settled legal propositions. The Tribunal has made the following observations:-

"The object of giving compassionate appointment is to provide immediate help to the family which is rendered breadless on sudden demise of the bread earner. In the present case, death took place on 29.7.1989. More than 13 years have passed. The crucial period where help was required has thus passed and the applicants have successfully crossed that."

The purpose of providing such an employment has been to render the financial assistance to the family, which has lost the bread earner immediately after the death of the employee. If the application has been filed after expiry of 9,1/2 years the element of immediate need stood evaporated and there was no occasion for the respondents to consider the case of the petitioner for such a relief. The observation made by the learned Tribunal are in consonance with the law laid down by the Hon'ble Apex Court and no exception can be taken out.

Petition is devoid of any merit and is accordingly dismissed.

9.4.2003

AKSI


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