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2017 DIGILAW 507 (JHR)

Deepak Kumar v. General Manager, Bank of India

2017-03-10

S.N.PATHAK

body2017
ORDER : I.A. No. 5092 of 2005 One interlocutory application has been filed for amendment in the prayer portion of the writ application. Heard the parties. The prayer is allowed. Let the amendment be incorporated in the prayer portion of the writ application. Accordingly, the IA No. 5092 of 2015 stands allowed. W.P. (S) No. 3116 of 2011 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. The petitioner has approached this Court with a prayer for his appointment on compassionate ground. 3. The factual exposition as has been delineated in the writ petition is that the father of the petitioner namely Bhola Prasad Rajak was employed as 4th Grade employee in Bank of India. Regional Office, Giridih who died in harnees on 10.8.2003. Petitioner applied, for compassionate appointment on 31.12.2003 pursuant to the demise of his father in which respondent-Bank replied on 27.9.2005 informing that appointments on compassionate ground has already been replaced by another scheme. It is stated that in response to the letter dated 27.9.2005 the petitioner represented to the General Manager vide letter dated 1.12.2005. In view of letter dated 10.1.2006, the decision has been taken by the respondent-Bank regarding compassionate appointment in accordance with new scheme. It was informed to the mother of the petitioner vide letter No. ZO/GRD/HR/HV-4052 dated 22.10.2007, as contained in Annexure-4 to the writ application, that the competent authority has rejected the request for compassionate appointment and hence, this writ petition. 4. Learned counsel for the petitioner, Mr. Prabhash Chandra Sinha, submits that the action of the respondent-Bank is illegal and arbitrary as the father of the petitioner died on 10.8.2003 and on 31.12.2003 the petitioner was informed regarding the new Scheme, whereas the new scheme itself came into existence on 27.12.2004 and when the petitioner was waiting for appointment, the same was rejected mechanically. Learned counsel submits that the case for appointment was pending for approval but no decision was taken on representation and it was only by way of Annexure-4, it was informed that the application has been rejected. Learned counsel submits that it is a fit case for appointment on compassionate ground, as the respondents themselves have illegally and arbitrarily rejected the claim without any rhyme and reasons and not even a word has been whispered in the impugned order regarding the reasons for rejection. 5. Learned counsel submits that it is a fit case for appointment on compassionate ground, as the respondents themselves have illegally and arbitrarily rejected the claim without any rhyme and reasons and not even a word has been whispered in the impugned order regarding the reasons for rejection. 5. On the other hand, counter-affidavit has been filed by the respondents. Mr. A. Alam, learned senior counsel assisted by Mrs. Nehala Sharmin appears for the respondents-Bank, vehemently opposes the contention of the petitioner. Learned senior counsel submits that the impugned order is justified as the reasons regarding rejection have been mentioned in Annexure-1 of the writ petition. Learned counsel further argues that reasons have also been assigned in the counter-affidavit. Further, argument of learned senior counsel is that there is delay of eight years and the Hon'ble Apex Court have rejected several cases on the ground of laches and delay. To strengthen his argument, learned counsel relies on the following decisions of the Hon'ble Apex Court:- (I) Santoh Kumar Dubey vs. State of U.P. & Ors., reported in (2009)6 SCC 481 . (II) State of U.P. & Ors. vs. Arvind Kumar Shrivastava & Ors., reported in (2015)1 SCC 347 : 2015(1) JLJR (SC)159. 6. Regarding the aforesaid decisions, it does not help the counsel for the respondents as the facts of the case are entirely different and does not apply to the present case and as such, fit to be rejected. It is a well settled principle that compassionate appointment is not a bonanza or any source of recruitment and it cannot be claimed as a matter of right but in the instant case, the delay and laches are on the part of the respondents-authorities and the rejection order was non-speaking and intentional just to frustrate the claim of the petitioner and hence, the aforesaid cases cited by the learned counsel for the respondents are not at all applicable in the present facts of the case. 7. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the submissions of the learned counsel for the respondents are misconceived and not tenable in the eyes of law. It is apparent from the impugned order that the same is a non-speaking order as no reasons have been assigned for rejecting the claim of the petitioner for appointment on compassionate ground. It is apparent from the impugned order that the same is a non-speaking order as no reasons have been assigned for rejecting the claim of the petitioner for appointment on compassionate ground. The respondents-authorities have not even bothered to whisper a single word by assigning any reason for rejection of the case. The impugned order is capricious and whimsical and has been passed in a mechanical manner. The contention of the learned counsel for the respondents that they have assigned reasons in the counter-affidavit, cannot be accepted by this Court and hence, rejected. Non-speaking order always leads to arbitrariness and if arbitrariness is present, equality is always absent. Looking to Annexure-4, the impugned order, it appears that it is thoroughly a non-speaking order without assigning any reason and full of arbitrariness and hence, is violative of rights of equality vested in the petitioner and as such, is violative of Article 14 of the Constitution of India, Hence, the impugned order dated 22.10.2007, as contained in Annexure-4, deserved to be quashed and set aside. The further contention of the learned counsel for the respondents that the delay and laches is on the part of the petitioner, as the petitioner has approached this Hon'ble Court after eight years, this contention of the learned senior counsel is not at all tenable in the eyes of law and is fully misconceived as it was only in the year 2007, the petitioner's mother was informed regarding order of rejection and even there is no whisper in the impugned order that it has been rejected on ground of delay and laches. The argument of the learned counsel for the respondents is not accepted by this Court on the ground that no reasons can be supplied in the counter-affidavit to justify a thoroughly non-speaking order. Otherwise all the non-speaking and arbitrary orders will be converted into well-reasoned and speaking orders by passage of time by way of counter-affidavit filed in the Court. No reasons can be supplied subsequently in the counter-affidavit by the Government. The reasons must have been mentioned in the impugned order itself. The Hon'ble Supreme Court in the case of Commissioner of Police, Bombay vs. Gordhandas Bhanji, reported in AIR 1952 SC 16 , para 9 has held as under:- "9. No reasons can be supplied subsequently in the counter-affidavit by the Government. The reasons must have been mentioned in the impugned order itself. The Hon'ble Supreme Court in the case of Commissioner of Police, Bombay vs. Gordhandas Bhanji, reported in AIR 1952 SC 16 , para 9 has held as under:- "9. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do, Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." The aforesaid decision has also been followed in several subsequent decisions like in the case of Mohinder Singh Gill vs. Chief Election Commissioner, reported in (1978)1 SCC 405 , paragraph-8 of which reads as under:- "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought, out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji. Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older." In view of the aforesaid decision also, subsequent supply of reasons in the counter affidavit cannot convent a non-speaking order into a speaking order. Thu, the contention raised by the counsel for the respondents that the reasons have been assigned in the counter affidavit which makes a non-speaking order into a speaking one is not accepted by this Court. 8. Having gone through the Annexure-1, this court finds that it is not the reason. The scheme has been explained in Annexure-1, which cannot ho said to be the reasons for rejection of the case. In view of the aforesaid observation, Annexure-4 is hereby quashed and set aside. 9. As a cumulative effect of the aforesaid observations, rules, guidelines and the judicial pronouncements, this court is of the considered view that annexure-4 is not at all tenable in the eyes of law and the same is quashed. Accordingly, the writ petition is allowed. 10. The respondents are hereby directed to consider the case of the petitioner within a period of six weeks from the dated of receipt of a copy of this order for appointment on compassionate ground.