(This petition is filed under Articles 226 and 227 of the Constitution of India, praying to direct the respondents to consider the application of the petitioner for appointment on compassionate ground.)
Mother of the petitioner, Smt.K. Shamba (for short ‘the deceased’) was working as a Sheristedar in the Court of Civil Judge, Mangalore. While she was working on deputation basis w.e.f. 14.10.1986, in the Karnataka Administrative Tribunal (for short ‘the Tribunal’), expired on 17.05.1987. At the time of her death, petitioner was a minor. After attaining the age of 18 years, having passed SSLC, petitioner submitted a representation to the Tribunal, for appointment on compassionate ground, which was forwarded on 22.09.2000, for further action, to the Registrar General of High Court of Karnataka. Service particulars of Smt. Shamba having been called for by the 1st respondent, the District Judge, D.K. Mangalore on 16.12.2000, requested the Registrar of the Tribunal, to send the service register and family pension papers of the deceased, to consider the said application of the petitioner.
2. The 1st respondent by a communication dated 16.11.2000, while returning the undated application of the petitioner for appointment on compassionate ground, which had been sent along with enclosures on 22.09.2000, requested the Registrar of the Tribunal, to insist the petitioner to submit the same through the District and Sessions Judge, D.K., along with proforma-II, as required under O.M.No.DPAR 30 SSR 84 dated 22.08.1985 and also to send the last annual property return filed by the deceased. The Registrar of the Tribunal, on 24.11.2000, while returning the application along with the Annexures as furnished by the petitioner, notified the petitioner that, the application be submitted to the 1st respondent, through the District and Sessions Judge, D.K. This writ petition was filed on 12.07.2011, to issue a writ in the nature of mandamus, directing the respondents to consider his application for appointment on compassionate ground.
3. Sri R. Nagendra Naik, learned advocate appearing for the petitioner submitted that, mother of the petitioner died while in service of the respondents on 17.05.1987 and father of the petitioner is a senior citizen and the petitioner is unemployed and was solely dependent upon the income of his mother. Learned counsel contended that, despite the petitioner approaching the respondents on 30.05.2000, seeking appointment on compassionate ground, the request has not been considered till date, on the ground that the service record of the deceased is not available. Learned counsel further contended that, there being an obligation on the part of the respondent to consider the application of the petitioner and the respondents having not taken any decision for more than 10 years, the writ petition may be entertained to grant the relief.
4. I have perused the writ record. The submissions made by Sri R. Nagendra Naik has received my consideration.
5. Petitioner made an application for appointment on compassionate ground on 30.5.2000 i.e., 13 years after the death of his mother. More than 11 years has elapsed after petitioner submitted the application. Deceased Government servant died about 24 years back and the family has survived. In the circumstances, is the matter “stale” or “live”, is the first question for consideration.
6. The purpose of providing employment to a dependent of a Government servant dying in harness is to mitigate the hardship caused to the family of the employee on account of her unexpected death while still in service. The purpose is to provide immediate financial assistance to the family of a deceased Government servant. Suffice to notice the decision in Union of India Vs. Bhagwan Singh, reported at 1996 SCC (LandS) 33, wherein, the factual position was that, an application for appointment on compassionate ground was made 20 years after the death of a Railway servant and the Apex Court while allowing the appeal has held as follows:
“The reason for making compassionate appointment, which is exceptional, is to provide immediate financial assistance to the family of a government servant who dies in harness, when there is no other earning member in the family.”
7. In the instant case, an application was made by the petitioner after 13 years of death of his mother and even after the application was submitted, more than 11 years has elapsed. There is delay and laches. In case of abandonment of claim, can a writ of mandamus be issued, is the second point for consideration.
8. In the case of C. Jacob Vs. Director of Geology and Mining, reported at (2008) 10 SCC 115, Hon’ble Supreme Court, while emphasizing the need for exercising circumspection and care in issuing directions for “consideration”, has observed that, if a representation on the face of it is ‘stale’ or does not contain particulars to show that, it is regarding a ‘live claim’, Courts should desist from directing “consideration” of such claims.
9. In the case of Union of India and Others Vs. M.K. Sarkar, reported at 2010 (2) SCC 59, it has been held as follows:
“16. A court or tribunal, before directing “consideration” of a claim or representation should examine whether the claim or representation is with reference to a “live” issue or whether it is with reference to a “dead” or “stale” issue. If it is with reference to a “dead” or “stale” issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or tribunal deciding to direct “consideration” without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect”.
10. In order to seek a writ of mandamus, it must be shown that the party asking for the writ has a subsisting legal right and a corresponding statutory obligation on the respondents. The principles on which a writ of mandamus can be issued has been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
“Note 187.- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
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Note 192.- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
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Note 196.- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned – an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequence which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. (Italicised by me).
11. The long delay of 10 years has not been explained by the petitioner. Annexure-F, being internal correspondence between the respondents, has not given any new cause of action for the petitioner to file this petition. The cause of action originally arose on 17.5.1987 with the death of the petitioner’s mother or at any rate, on 30.5.2000 when the petitioner submitted an application for appointment on compassionate ground. On account of the long delay, it can be presumed that the petitioner abandoned the claim. It is well established that, delay and laches can be ground to decline to exercise the discretion to issue writ of mandamus.
12. In Dhalla Ram Vs. Union of India, reported in AIR 1999 SC 564, the father of the petitioner died on 13.12.1965 and the petitioner attained majority on 12.07.1997 and made an application on 15.07.1987 for his employment on compassionate ground, which was rejected on 14.07.1988 and he filed O.A. before the Central Administrative Tribunal on 12.07.1993. Observing that, the very object of making appointment on compassionate grounds is to rehabilitate the family in distress of the deceased employee who dies in harness, in view of the long delay, relief was refused.
13. In Sulochana Duttargi Vs. Manager, National Insurance Co. Ltd., reported at ILR 2010 KAR 4041, the material facts were that, one Subhashchandra Duttargi while in employment of the respondent-company, died on 08.04.1994 and the petitioner submitted a representation to the employer, seeking appointment to her son on compassionate ground. Son of the petitioner attained majority on 02.10.2006. The respondents declined to grant the appointment. The petitioner got issued a legal notice followed by seeking information under the Right to Information Act, whereafter, a writ petition was filed to direct the respondents to consider the claim for grant of appointment on compassionate ground. The point considered was, whether the claim for appointment made after a lapse of about 16 years would negate the very object of appointment on compassionate ground? Following the ratio of law in catena of decisions of the Apex Court, which have made it clear that, appointment on the compassionate ground is not a vested right, which could be exercised at any point of time in future and cannot be claimed nor offered after a long lapse of time, after the crisis in the family is over, the writ petition was rejected.
14. In the instant case, 24 years having elapsed after the death of petitioner’s mother, the delay has negated the right of petitioner, who can be presumed to have abandoned the claim and hence the prerogative writ of mandamus cannot be issued. Both the questions stand answered against the petitioner.
In the result, the writ petition stands rejected.