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2004 DIGILAW 776 (MP)

Somvatibai Jhariya v. State of M. P.

2004-09-20

DIPAK MISRA

body2004
ORDER Dipak Misra, J. 1. The cardinal issue that emanates in this writ petition is whether regardless of colossal procrastination and mammoth lull, the petitioner, a hapless and unfortunate widow, should be extended the benefit of compassionate appointment or her rights are to be treated to have been clogged and fettered with efflux of time making it totally impermissible to rise like phoenix. 2. Mr. Arvind Nair, Learned Counsel for the petitioner initiated a battle between the sympathy and law by advancing a vehement contention that though the husband of the petitioner breathed his last in the first year of the 8th decade of the last century i.e. 1971 yet her case for grant of compassionate appointment despite being recommended by the Collector, Jabalpur and the Commissioner, Land Records, Gwalior, (as it did deserve sympathy) was not looked into and paid heed to by the higher authorities because of their sphinx like propensity that eventually the petitioner was compelled to submit a fresh representation in the year 1996 which faced dismissal by virtue of an order passed by an incompetent authority in the year 1999 and ultimately in 2004 by the authority who is competent to consider, and ergo she is entitled to be extended the benefit of compassionate appointment to survive and sustain herself and saved from being driven to the streets in an agonized and distressed state. 2A. The petitioner can definitely harbour immense hope but the same has to be nurtured within time and there is time for grappling with the every fact situation. Thirty-three years is a good major of time in the speck of time-frame. The Learned Counsel for the petitioner has endeavoured hard to put the blame on the authorities who did not react correctly and soundly till 2004. The Learned Counsel has laboured hard to impress upon this Court that the concept of compassion cannot be ostracized from the realm of mercy. It is submitted by him that the pity and mercy deserve to be extended in the case of this nature inasmuch as relaxing of scrutiny has to have a free play in the joints in the case at hand as justice has to be tempered with mercy. It is submitted by him that the pity and mercy deserve to be extended in the case of this nature inasmuch as relaxing of scrutiny has to have a free play in the joints in the case at hand as justice has to be tempered with mercy. In this context, I may refer with profit to the famous lines from the Merchant of Venice by William Shakespeare : The quality of mercy is not strained, It droppeth as the gentle rain from Heaven Upon the plain beneath : And earthy power doth then show Like God's When mercy seasons justice" 3-4. Though mercy should not be divorced from justice, the concept of mercy cannot be allowed to have a play is a vacuum. It is well settled in law that delay defeats justice. Some part of delay may be allowed to be covered within the realm of mercy but it cannot be stated that mercy has such overpowering effect to destroy the fibre of law. Some times, if I am permitted to say, a drop of mercy does also get obliterated when delay causes catastrophic disaster in the marrow of justice. In this regard I may state that delay has to be construed taking note of various spectrums. Mere delay in all cases may not be a governing facet to throw a writ petition overboard. But, sometimes it really becomes a destructive and vanquishing catalyst so that the invocation of extraordinary jurisdiction gets handicapped. In this context, I may profitably refer to the decision rendered in the case of Jagdish Narain Maltiar vs. The State of Bihar and others, AIR 1973 SC 1343 . In the aforesaid case a two Judge Bench of the Apex Court expressed the view that when a government servant after being informed that his services were terminated for misconduct spent three years in sending memorials to the government, a remedy not appointed by law, the High Court was justified in rejecting his writ petition filed thereafter on the ground of delay. 5. In the case of State of U. P. and others vs. Raj Bahadur Singh and others, (1998) 8 SCC 685 the Apex Court ruled that the Court has to see whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him. 6. 5. In the case of State of U. P. and others vs. Raj Bahadur Singh and others, (1998) 8 SCC 685 the Apex Court ruled that the Court has to see whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him. 6. In the case of Sudhir Vishnu Panvalkar vs. Bank of India, (1997) 6 SCC 271 their Lordships have laid down that delay of three and half years suffers from vice of delay and laches. 7. In this context, I may usefully refer to the case of Jharkhand Mazdoor Sangh vs. Presiding Officer and others, (2002) 10 SCC 703 wherein their Lordships dismissed the appeal on the ground that there was inordinate and unexplained delay of five years in filing the writ petition. It is relevant to state here that explanation given therein was the ground of illness (bronchial asthma) of the Secretary of the Mazdoor Sangh which was not accepted by the Apex Court. 8. In the case of State of Orissa vs. Lochan Nayak, (2003) 10 SCC 678 the Apex Court held as under : 2. Learned Counsel appearing for the appellant urged that as the writ petitions filed by the respondents herein were extremely belated and suffered from laches, the High Court ought not to have entertained the petitions. We find substance in the argument. What we find here is that the matters were decided in the year 1986, whereas the writ petitions were filed in the year 1992. There was an inordinate delay for which no sufficient cause was shown before the High Court and the High Court thus ought not to have entertained those writ petitions. On this short ground, the judgments under challenged deserve to be set aside. 9. The present factual matrix has to be tested on the touchstone and anvil of the aforesaid pronouncement of law. As has been indicated earlier the life spark of the husband of the petitioner was extinguished in the year 1971. The writ petition has been filed in the year 2004 when a fresh representation submitted in the year 1996 was rejected in the year 2004. The aforesaid submission indubitably does not wipe out the delay and laches. Vacuum for the period from 1971 to 1996 cannot be allowed to vaporize. The writ petition has been filed in the year 2004 when a fresh representation submitted in the year 1996 was rejected in the year 2004. The aforesaid submission indubitably does not wipe out the delay and laches. Vacuum for the period from 1971 to 1996 cannot be allowed to vaporize. One cannot be oblivious of the fact that such colossal delay and enormous laches do close the shutters and put a shackle on the rights. Law, 'a living science' which has a duty to save the injured, cannot be of any aid to a person who has not taken care of her rights for long. 10. Consequently, the writ petition, being sans merit stands dismissed.