Back
2019 Supreme(Ker) 779
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. MANIKUMAR, C.T.RAVIKUMAR, JJ.
The Deputy General Manager(HRD) Human Resource Development, Bharat Earth Movers Limited (BEML) – Appellant
Versus
K.M.Pradeep Varma, S/o Late V.P.Vasudevan – Respondent
WA.No.980 of 2015
Decided on : 07-11-2019
Advocate Appeared:
For the Appellant : SRI.SUNIL NAIR PALAKKAT, SRI.K.N.ABHILASH
For the Respondent: SMT.SHERLY THOMAS, SRI.K.N.ABHILASH, Adv.
IMPORTANT POINTS
Persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief.
Headnote:
Constitution of India- Art. 226, Art.32- Compassionate Appointment- Delay-Where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State.
Statement of facts:
Respondent/father expired on 5.7.1981, when he was working with the appellants at Rail Coach Division, Bangalore, leaving his family in indigent circumstances. At the time of death of his father, respondent was aged about 10 years. According to the appellants, even though there was no claim for appointment, under dying-in-harness scheme, they extended an offer of appointment to mother of the respondent. She did not join duty. After twelve years, respondent submitted a representation claiming employment assistance on compassionate grounds-Being aggrieved by the decision in W.P.(C) No.2706 of 2012 dated 5.3.2015 by which, the Deputy General Manager (HRD), Human Resource Development, Bharat Earth Movers Limited (BEML), Bangalore, respondent No.1 before writ court, was directed to consider and pass favourable orders on Exhibit-P14 representation in the next arising vacancy, instant writ appeal has been filed.
Finding of the court:
The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
Result: Writ appeal is allowed.
JUDGMENT :
Dated this the 7th day of November, 2019 S.Manikumar, C.J. Being aggrieved by the decision in W.P.(C) No.2706 of 2012 dated 5.3.2015 by which, the Deputy General Manager (HRD), Human Resource Development, Bharat Earth Movers Limited (BEML), Bangalore, respondent No.1 before writ court, was directed to consider and pass favourable orders on Exhibit-P14 representation in the next arising vacancy, instant writ appeal has been filed.
2. Short facts leading to the writ appeal are that respondent/father expired on 5.7.1981, when he was working with the appellants at Rail Coach Division, Bangalore, leaving his family in indigent circumstances. At the time of death of his father, respondent was aged about 10 years. According to the appellants, even though there was no claim for appointment, under dying-in-harness scheme, they extended an offer of appointment to mother of the respondent. She did not join duty. After twelve years, respondent submitted a representation claiming employment assistance on compassionate grounds.
3. From the material on record, it could be deduced that when respondent preferred W.P.(C) No.2706 of 2012, with a prayer to call for Exhibit-P1 death certificate of his mother, Exhibit-P2 death certificate of his brother, Exhibit-P3 degree certificate in science and Exhibit-P4 letter issued by 1st respondent therein to his mother, to issue a mandamus directing appellants to appoint the respondent in any of the existing vacancies based on the qualification of the respondent under the dying in harness scheme, a counter affidavit has been filed by the Senior Manager (Legal) BEM Limited, Bangalore, opposing the prayers sought for, on the grounds, inter alia, that writ petition is not maintainable, either in law or on facts. For brevity, the relevant portions are extracted hereunder:
“At this juncture, it is humbly submitted that the Hon'ble Supreme Court in State of J&K V. Sajad Ahmed Mir (2006) 5 SCC 766 held that normally, an employment in the Government or other public sectors should be open to all eligible candidates, who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of the competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the set back. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say good bye to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the constitution.
It would be relevant to submit that the dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. [2010 (11) SCC 661; State Bank of India V Rajkumar]. The Respondent Company doesn't have a scheme for compassionate employment under dying in harness scheme.
It is submitted that the averment in para 3 of the Writ Petition is misleading. The Respondent Company had sent a letter vide Ref. No.RK/EMP/12-5(P)/1422 dated 18/01/1982 (Exhibit-P4), to Smt.KM Saraswathy, widow of late Vasudevan, offering the job on casual basis on daily wages of Rs.12/-per day and accordingly, she was advised to report immediately with all original certificates and testimonials. Whereas, she has neither report
