B. Subhadra v. A. P. Power Generation Corporation Limited
2020-07-07
P.NAVEEN RAO
body2020
DigiLaw.ai
JUDGMENT P.Naveen Rao, J. - Heard Mr. C.Narender, learned counsel for petitioner, and the learned standing counsel for respondents. 2. Late B.Mangamma, who was working as Sweeper, died on 05.04.2001 while in service. Petitioner is daughter of late Mangamma. Petitioner was married to Sri B.Narsimha Rao on 29.03.1991. Petitioner was blessed with four children. Petitioner claims that she divorced her husband on 11.07.1998 and was living with her mother till her death, and was totally dependent on her mother's earnings. After the demise of her mother, petitioner made application to provide appointment on compassionate grounds. Petitioner claimed to have made representations soon after the death of her mother, on 05.03.2002, in the year 2004 and on 28.06.2006. On 26.12.2001 request of petitioner was rejected. In the communications, in response to subsequent representations, the fact that request was rejected earlier was informed. This Writ Petition is filed praying to declare the communication informing rejection of her request for compassionate appointment as illegal and arbitrary, and sought consequential directions. 3. According to learned counsel for petitioner, as petitioner was the only daughter of late Mangamma, she is entitled to appointment on compassionate grounds. After the divorce she was completely dependent on her mother and after the death of her mother, she is suffering financially, more so as she was left alone to look after four girls. As per the policy, even a married daughter is entitled to seek appointment on compassionate grounds. He would therefore submit that denial of appointment is wholly illegal, arbitrary and discriminatory. He would submit that even at this stage also, petitioner is facing lot of hardship to eke out a living and to take care of four grown up children. 4. Learned standing counsel would submit that the claim of petitioner that she was dependent on her mother is false. The claim of divorce is also not valid. There is no decree of divorce submitted. Alleged customary divorce is also not true. He would submit that the stamp papers on which alleged divorce was recorded stated to have taken place on 18.06.1998 were purchased on 11.07.1998. There is no explanation on this discrepancy. 5. The claim is also vitiated by delay. The claim was rejected on 30.01.2001, but petitioner waited till 2006. In the subsequent decisions, petitioner was only informed about earlier decision. Further, petitioner filed an affidavit of her husband dated 25.09.2001.
There is no explanation on this discrepancy. 5. The claim is also vitiated by delay. The claim was rejected on 30.01.2001, but petitioner waited till 2006. In the subsequent decisions, petitioner was only informed about earlier decision. Further, petitioner filed an affidavit of her husband dated 25.09.2001. Once divorce was granted, question of said person being treated as husband and giving an affidavit does not arise. He would therefore submit that claim is not valid. He would submit that scheme to provide employment on compassionate grounds to married daughter was introduced for the first time w.e.f. 08.10.2003 and was not applicable to old cases. Therefore, petitioner was not entitled to seek employment even otherwise. 6. In a nutshell, petitioner claims appointment on compassionate grounds contending that she is a divorcee and dependent on her late mother Mangamma. 7. Two aspects require consideration. Firstly, whether her claim is valid ? and secondly whether such claim is hit by delay and laches ? 8. Petitioner has not restricted her claim only as a married daughter of deceased employee, but claimed employment as divorcee dependent on her mother. According to her, she took divorce by following customary practices and divorce was recorded on a stamp paper in the presence of elders. Respondents disputed her claim of divorce. It is asserted by respondents that the divorce was written on stamp papers dated 11.07.1998 recording alleged divorce dated 18.06.1998. It is further asserted that husband deposed to affidavit dated 25.09.2001 stating that he was not employed and if divorce took place there was no need to file such an affidavit. These specific assertions in the counter-affidavit, which are crucial to genuineness of the claim, are not denied. No other material is filed to show her claim is genuine. Further, strangely the legal heir certificate dated 05.06.2001 also shows the status of petitioner as wife of Sri Narsimha Rao. These aspects through enough doubts on validity of claim of petitioner about divorce and dependence on her mother. 9. However, matter does not rest here. The claim is also hit by delay and laches. 10. In response to the application submitted by the petitioner, on 26.12.2001, the Chief Engineer, O&M, KTPS, addressed letter informing her the decision taken by the company vide Memo dated 30.11.2001 rejecting her request.
9. However, matter does not rest here. The claim is also hit by delay and laches. 10. In response to the application submitted by the petitioner, on 26.12.2001, the Chief Engineer, O&M, KTPS, addressed letter informing her the decision taken by the company vide Memo dated 30.11.2001 rejecting her request. In spite of a decision made rejecting her request, she made another representation on 05.03.2002, and another representation on 16.08.2004. In response to the representation dated 16.08.2004, the Chief Engineer vide his letter dated 20.09.2004 informed the petitioner that her request was already rejected. After another two years, she makes a fresh representation. The Chief Engineer vide his letter dated 15.09.2006 reminded the petitioner that her request was already rejected. In this writ petition, petitioner challenges the letter dated 15.09.2006. The original decision is not under challenge. By this letter, no decision is taken. It only refers to the earlier decision. This letter does not give rise to fresh cause of action. 11. It is settled principle of law that repeated representations and a reply to such representations do not save limitation and do not give rise to cause of action. [ S.S. Rathore vs. State of Madhya Pradesh, (1990) AIR SC 10] . In the communication dated 15.09.2006, no new decision was taken. She was only informed about decision already taken. The clock started ticking from 26.12.2001 when decision of the company rejecting her request was informed to petitioner. This writ petition is instituted after more than five years from the date of death of mother of petitioner and rejection of request. Moreover, the original decision is not under challenge. 12. The writ remedy is discretionary remedy. Though no limitation is prescribed to entertain a writ petition under Article 226 of the Constitution of India and no fetters are imposed on writ Court to entertain a writ petition, the principle of law is well settled that a person, who seeks intervention of the High Court under Article 226 of Constitution of India, should invoke the jurisdiction of this Court immediately after cause of action arises and at any rate within a reasonable time. Ordinarily, the reasonable time in prosecuting the writ remedy is the time available to prosecute civil law remedy. Anything beyond that cannot be said as reasonable for prosecuting the writ remedy.
Ordinarily, the reasonable time in prosecuting the writ remedy is the time available to prosecute civil law remedy. Anything beyond that cannot be said as reasonable for prosecuting the writ remedy. Whenever, there is delay in filing writ petition, detailed reasons must be assigned with supporting material. The burden is heavy on petitioner to explain the delay in filing the writ petition when such delay is unreasonably long. The court exercising public law jurisdiction does not encourage agitation of stale claims. ( Shiba Shankar Mohapatra Vs State of Orissa, (2010) 12 SCC 471 ) . 13. Even if an adverse decision is void, inoperative and ultravires, but it is still in de facto operation unless and until it is declared to be void and nullity, even where the 'brand of invalidity' is plainly visible. The Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. A person seeking to invalidate an order/decision must approach the court within the prescribed period of limitation/within reasonable time [ State of Punjab Vs Gurdev Singh, (1991) 4 SCC 1 ; Prahalad Raut Vs All India Institute of Medical Sciences,2019 SCCOnline 1110]. 14. Consideration of claim for compassionate appointment depends on various factors, such as, the nature of employment of former employee, the financial strength of the family, the number of dependents of Ex-employee, status of the family members and date of submission of application. The foremost factor for consideration by employer is destitute circumstances prevailing in the family requiring such employment. Thus, proximity to occurrence of event is crucial. If family has survived the calamity and sustained for reasonable time without the financial support in the form of salary of the earlier bread winner, it is presumed that the family is not in destitute circumstances requiring such appointment. It is wrong to assume that a right is vested in the dependent of ex-employee to seek employment at any time irrespective of date of demise and irrespective of the financial status of the family and after long lapse of time. It is something akin to fire fighting mechanism. 15. In the long line of precedent decisions, the Hon'ble Supreme Court laid down the clear mandate on how to consider such claims.
It is something akin to fire fighting mechanism. 15. In the long line of precedent decisions, the Hon'ble Supreme Court laid down the clear mandate on how to consider such claims. It is held that the compassionate employment cannot be granted after a lapse of a reasonable period; It is not a vested right which can be claimed at any time. ( Umesh Kumar Nagpal Vs. State of Haryana, (1994) 4 SCC 138 ; Eastern Coalfields Ltd. Vs. Anil Badyakar, (2009) 13 SCC 112 ; MGB Gramin Bank vs. Chakravarti Singh, (2014) 13 SCC 583 . Delay in seeking such claim is antithesis to the purpose for which compassionate appointment was conceived and the object sought to be achieved; The Courts should not fall pray to sympathy syndrome. ( CCE Customs vs. Prabhat Singh, (2012) 13 SCC 412 ) . 16. The Writ Petition was instituted after five years from the date of rejection and after six years from the date of death. Even assuming that claim of petitioner as dependent of late Mangamma is valid, she could sustain for six long years before instituting this Writ Petition. Thus, even by the time writ petition was filed, it cannot be said that she was in destitute circumstances. It is now 19 years. No material is placed on record to show the financial position of the petitioner. By filing an affidavit of a person, who, according to petitioner, was her ex-husband complicated her claim. She has overcome the calamity and moved on. In the facts of this case, it cannot be said that the Writ Petition is filed within a reasonable time and the family is still dependent on the earnings of late employee, warranting extension of benevolent scheme benefit. 17. For the afore stated reasons, writ petitioner is not entitled to relief claimed. Writ Petition is dismissed. Pending miscellaneous petitions shall stand closed.