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2023 Supreme(Online)(JHK) 9333
HIGH COURT OF JHARKHAND
Sujit Narayan Prasad, Sanjay Kumar Dwivedi, JJ
Rahul Kumar – Appellant
Versus
The Government of India – Respondent
L.P.A. No. 167 of 2023
For the Appellants/Petitioners: Mr. Ajit Kumar
For the Respondents: Mr. Anil Kumar, Ms. Chandana Kumari
The right to sue for compassionate appointment survives among dependants after the original petitioner's death, subject to judicial review and administrative guidelines.
Headnote:(A) Constitution of India - Article 226 - Writ petition abatement due to petitioner's death - Maintainability of appeal after dismissal of substitution application - Right to sue does not extinguish if other dependants exist to seek remedy - Appointment on compassionate ground is subject to the discretion of the authorities based on existing guidelines. (Paras 1, 34, 51)
(B) Procedure - The principles from the Civil Procedure Code apply to writ petitions, guiding issues of substitution and abatement. (Paras 8, 12)
Facts of the case:
The writ petition filed by Manish Sharma for compassionate appointment was abated due to his death, prompting an interlocutory application for substitution by his brothers, which was rejected by the learned Single Judge.
Findings of Court:
The learned Single Judge's decision to reject the application was deemed incorrect as the right to sue survives with other dependants still seeking legitimate appointment based on the deceased's prior claim.
Issues: Whether the right to sue survives after the death of the original petitioner following rejection of compassionate appointment.
Ratio Decidendi: The court held that the right to sue survives amongst other dependants who can challenge the administrative decision rejecting the compassionate appointment claim. Dismissal of the interlocutory application was quashed as incorrect.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. maintainability issue raised regarding substitution application. (Para 1 , 2 , 3 , 4 , 5) |
| 2. discussion on abatement and application of civil procedure rules. (Para 7 , 8 , 12 , 14) |
| 3. right to sue still exists for other dependants after the petitioner’s death. (Para 34 , 35 , 36 , 39) |
| 4. final dismissal on merits of compassionate appointment claim. (Para 51) |
ORAL JUDGMENT
08/Dated: 22nd June, 2023
Per Sujit Narayan Prasad, J.
1. The instant appeal under clause 10 of letters patent is directed against the order/judgment dated 09.02.2023 passed by the learned Single Judge of this Court in W.P.(S) No. 5624 of 2017, whereby and whereunder, two fold orders have been passed – (i) rejecting the prayer made in the interlocutory application being I.A. No. 1074 of 2023 filed by his brother to substitute the writ petitioner as he died during pendency of the writ petition on 11.12.2022; (ii) order passed by the learned Single Judge of abating the writ petition due to dismissal of the substitution application being I.A. No. 1074 of 2023.
2. Office has raised the issue of maintainability. This Court, therefore, is first to decide the issue of maintainability.
3. Learned counsel for the petitioner has submitted that the objection so made by the office regarding the maintainability of the writ petition is having no substance since the writ petition has been held to be abated by dismissing the prayer made in the interlocutory application which was filed for substitution of the writ petitioner, namely, Manish Sharma through his two brothers, namely, Sumit Sharma and Rahul Kumar.
It has been contended that the moment, prayer made in the interlocutory application has been rejected, the same being an order passed declining to implead the applicant as party to the proceeding, the said order is amenable to be challenged under clause 10 of the Letters Patent, therefore, the instant appeal will be maintainable.
It has been contended that in the instant interlocutory application for substitution of the original writ petition if would not have been there, then in that circumstances, the writ petition if would have been held to be abated, the matter would have been different but that is not the fact herein, hence, submission has been made that the instant appeal is maintainable and the office objection regarding the maintainability of the writ petition may be over-ruled.
4. So far as the issue of merit is concerned, submission has been made that the substitution application, if, it would have been allowed, then the matter would have been heard by the learned Single Judge on merit regarding the legality and propriety of the impugned order but due to dismissal of the prayer made in the interlocutory application refusing on implead the other dependants of the deceased employee, the very legality and propriety of the impugned judgment taken by the authority concerned rejecting the claim of the elder son of the deceased employee, namely, Manish Sharma has made the litigant, the applicant of the interlocutory application, go remediless, therefore, the instant appeal is well maintainable and the prayer has been made to decide the issue on merit after over-ruling the objection raised on behalf of the office regarding the maintainability of the appeal.
5. While, on the other hand, learned Additional Solicitor General of India has admitted that by dismissing the prayer made in the interlocutory application, the right of the party regarding its impleadment has been decided without taking into consideration its effect, i.e., of non- adjudication of the legality and propriety of the impugned order, therefore, it has been submitted that the issue may be heard on merit.
6. We have heard the learned counsel for the parties and perused the documents available on record.
7. This Court before delving upon the issue on merit, deems it fit and proper to decide the issue on maintainability of the appeal. Herein, the facts of the given case is that the writ petition has b
