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2015 DIGILAW 266 (RAJ)

Suman Sharma v. State of Rajasthan

2015-01-29

NIRMALJIT KAUR

body2015
Hon'ble MS. KAUR, J.—The prayer in the present petition is for a direction to the respondents to consider and provide compassionate appoint-ment to the petitioner on a suitable post in accordance with the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 (hereinafter referred to as “the Rules of 1996”). 2. The petitioner is the daughter-in-law of late Heera Lal who died while in service on 15.12.2005. The late Heera Lal was survived by his wife, daughter-in-law (the present petitioner-Smt. Suman Sharma), and grandson. He also left behind him one daughter-Mrs. Lalita. The petitioner being the daughter-in-law filed an application under the Rules of 1996 for appointment in the Department on compassionate ground. However, vide communication dated 18.8.2006, the respondents rejected the application of the petitioner filed under the Rules of 1996 on the ground that “daughter-in-law” does not fall under the category of dependents mentioned under the Rule 2(C) of the Rules of 1996. Thereafter, the petitioner accepted her fate and did not challenge the order rejecting her application. Meanwhile, one S.B.Civil Writ Petition No.9177/2010 (Smt. Pinki vs. State of Rajasthan & Ors.) came to be filed before this Court, in which the petitioner i.e. Smt. Pinki was widowed daughter-in-law. The writ petition was allowed on 12.09.2011 holding that “widowed daughter-in-law” is a dependent of a government servant as defined under Rule 2(C) of the Rules of 1996 and the decision of the government in refusing appointment on the said ground was set aside. In view of the said changed position of law, the petitioner submitted a representation before the respondents on 26.8.2014. However, the said representation was rejected by the Deputy Director, Ayurved Department, Ajmer vide letter dated 2.9.2014 on the ground that daughter-in-law does not fall under the definition of dependents given under Rule 2(C) of the Rules of 1996. 3. A perusal of the above facts show that the application of the petitioner was dismissed way back on 18.8.2006. The present writ petition has been filed almost after 10 years. While explaining the delay, learned counsel for the petitioner contended that it was only when the petitioner came to know about the judgment rendered by this Court in S.B.Civil Writ Petition No.9177/2010 (Smt. Pinki vs. State of Rajasthan & Ors.), decided on 12.09.2011 that she once again represented to the Department on 26.8.2014. While explaining the delay, learned counsel for the petitioner contended that it was only when the petitioner came to know about the judgment rendered by this Court in S.B.Civil Writ Petition No.9177/2010 (Smt. Pinki vs. State of Rajasthan & Ors.), decided on 12.09.2011 that she once again represented to the Department on 26.8.2014. Since the same has been dismissed only now on 2.9.2014, there is no delay. Further, the second argument raised by learned counsel for the petitioner is that the said representation has been rejected on the same ground without taking into consideration the judgment rendered by this Court in the case of Smt. Pinki (supra) and that since her condition has deteriorated further on account of lack of finances, her case should be considered sympathetically while ignoring the delay. 4. Heard. 5. The petitioner accepted her fate way back in the year 2006. The widowed daughter-in-law is not mentioned as dependents of the deceased government servant in the Rules. There is no doubt that the said issue has been settled by the judgment rendered by this Court in the case of Smt. Pinki vs. State of Rajasthan & Ors. (S.B.Civil Writ Petition No.9177/2010), decided on 12.09.2011. However, it is a well settled proposition of law that employee or any other person, who does not wake up to challenge the rejection order or come to the court to claim their right on time and thus accept their fate, cannot be granted relief simply on account of a subsequent judgment delivered by a court in another case of similar nature. 6. The Delhi High Court in the case of Shiv Charan vs. High Court of Delhi & Anr. (Writ Petition (C) No.5892/2007), decided on 30.5.2008 while relying on the judgment of Hon'ble Supreme Court in the case of NDMC vs. Pan Singh & Ors., reported in (2007) 9 SCC 278 held in para 12 & 13 as under:- “12. The doctrine of latches especially in respect of the service jurisprudence was once again examined in the matter of U.P. Jal Nigam and Anr. vs. Jaswant Singh & Anr; (2006) 11 SCC 464 . The doctrine of latches especially in respect of the service jurisprudence was once again examined in the matter of U.P. Jal Nigam and Anr. vs. Jaswant Singh & Anr; (2006) 11 SCC 464 . In the same vein as in the case of NDMC vs. Pan Singh & Ors’ case (supra), it was observed that the employees who had not woken up to challenge their retirement and accepting the same had collected their post retirement benefits could not be granted relief in view of a subsequent decision delivered by the Supreme Court. A reference was made to the Halsbury’s Laws of England and it was observed in para 12 & 13 as under: “12. The statement of law has also been summarized in Halsbury’s Laws of England, para 911, p.395 as follows: “In determining whether there has been such delay as to amount to latches, the chief points to be considered are: i) Acquiescence on the claimant’s part; and ii) Any change of position that has occurred on the defendant’s part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of latches” 13. In view of the statement of law as summarized above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or wiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in grating the relief to the incumbent. Therefore, whenever it appears that the claimants lost time or wiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in grating the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or a waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?” 13. On examination of the principles of law laid down aforesaid, we are of the considered view that the petitioners are not entitled to any relief on grounds of delay and latches. No doubt the petitioners are identically positioned as Mr. M.S.Rohilla but for the last twelve years took no steps to challenge their reversion. They accepted the reversion and the pay package as a consequence thereof and retired from service accepting the retiremental and pensionary benefits which accrued to them as a consequence of the reversion. The benefits are personal to the petitioner and there is no explanation as to why the petitioners did not join in and file writ petitions challenging their reversion. They, in fact, acquiesced and accepted their reversion without being vigilant of their rights. The services which were rendered by the petitioners were also of the subordinate judicial service for which they have been paid.” 7. They, in fact, acquiesced and accepted their reversion without being vigilant of their rights. The services which were rendered by the petitioners were also of the subordinate judicial service for which they have been paid.” 7. In the case of compassionate appointment, the Hon'ble Supreme Court while refusing to grant compassionate appointment on the question of delay dismissed the Civil Appeal No.1955/2003 filed by one Santosh Kumar Dubey vs. State of U.P. & Ors.) on 18.5.2009 holding that very concept of giving a compassionate appointment is to tide over the financial difficulties which is an immediate loss. The family having survived for the last so many years ipso facto shows that they have successfully faced and overcame financial difficulties arising on account of the death of deceased. Paras 8 & 9 of the said judgment reads as under:- “8. A bare perusal of the aforesaid rule would make it crystal clear that there is a time limit prescribed according to which a deserving candidate has to make an application for appointment within five years from the date of death of the government servant. Admittedly, the father of the appellant was untraceable from 1981. Without entering into and deciding the issue as to whether employment on compassionate ground could be asked for in a case of deemed death under Sec. 108 of the Evidence Act, even if we assume for the sake of argument that it can be so demanded and asked for, such a right should and could have been exercised in the year 1988 and computing the period of five years therefrom the period of limitation for making an application for employment in the case of the appellant expired in the year, 1993. The very concept of giving a compassionate appoint-ment is to tide over the financial difficulties that is faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. The request for appointment on compassio-nate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be ano-ther source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in Government service. 9. In the present case, the father of the appellant became untraceable in the year 1981 and for about 18 years, the family could survive and successfully faced and overcame the financial difficulties that they faced on missing of the earning member. That being the position, in our considered opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions. The appeal, therefore, has no merit and is dismissed. 8. The similar observations were made by Hon'ble Supreme Court in the case of State of U.P. & Ors. vs. Paras Nath, reported in (1998) 2 SCC 412 . 9. Applying the test in the present case, the petitioner has filed the writ petition after almost 10 years of her representation having been dismissed. Filing of the subsequent representation on account of the change of law will not condone the delay. The argument of learned counsel for the petitioner that the subsequent representation has not been dismissed on the ground of delay does not help. The respondents specifically stated in the impugned order that the application of the petitioner has already been rejected in the year 2006. The petitioner should have approached this Court immediately. She accepted the order. The relief under Article 226 of the Constitution of India being discretionary, this Court does not deem it proper to entertain the present petition after a gap of almost 10 years. 10. Dismissed accordingly.