Lalit Kumar Vs. the State of Haryana and ors. - Court Judgment

Excerpt:
- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - instead each individual case should be examined carefully and employment, which should be confined to class-ill and class iv posts, should be provided only if it is justified in order to avoid exceptional hardship and not otherwise. 3 to appoint the petitioner on the post of patwari, but the latter vide letter dated june 28, 1982, recommended that the petitioner be appointed on the post of kanungo class-a keeping in view the status of his father. there must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. he is claiming appointment to the post of naib tehsildar on compassionate grounds under the government's policy decision dated july 13, 1971. he was not satisfied with the post of clerk offered to him to which he was found entitled to on the death of his father. - it is not disputed that the petitioner satisfied the educational and other requirements for the post of inspector.g.r. majithia, j.1. the petitioner has sought a mandate to the respondents to appoint him against the post of naib tehsildar with effect from december 2, 1987, in this petition under articles 226/227 of the constitution of india.2. the petitioner's father late sh. hem chander gupta, who was working as tehsildar, ferozepur jhirka, in the state of haryana, expired on june 22, 1981. the govt. of haryana issued circular letter no. 3442-3gs-ii-71/19169, dated july 13, 1971, providing for absorption in government service one or more members of the family of the deceased govt. employee on class-iii or class iv posts, as the case may be, even in relaxation of the rules. the relevant portion of these instructions read thus :-'i am directed to invite attention to the haryana government circular letter no. 9054-4gs-70/32230, dated the 22nd december, 1970, on the subject noted above in which it was indicated inter-alia that one or more members of the family of the deceased employee would be considered for absorption in govt. service, the relevant rules being relaxed, if necessary and feasible. in this connection the question as to the general policy to be followed in this behalf and the extent to which the rules should be relaxed has been considered by the state government and it has been decided to make it clear that it is not the intention to provide employment to the dependents of deceased government employee as a matter of course. instead each individual case should be examined carefully and employment, which should be confined to class-ill and class iv posts, should be provided only if it is justified in order to avoid exceptional hardship and not otherwise.2. in the matter of relaxation of rules etc. relaxation will be necessary in respect of the condition that appointment should be made after reference to the employment exchange on the recommendation of the service selection board. as to the relaxation in the matter of age, qualifications, etc. the criterion should be that relaxation should be considered only to the extent that the work of the post in question will not be adversely affected and the person concerned will be able to undertake the work satisfactorily. recommendations in this regard should be formulated after due consideration and reference thereafter be made to the chief secretary (in general service ii branch) which office will then process the case further.'the petitioner's mother submitted an application that her son be appointed to the post of kanungo ('a' class). respondent no. 1 wrote a letter to respondent no. 3 to appoint the petitioner on the post of patwari, but the latter vide letter dated june 28, 1982, recommended that the petitioner be appointed on the post of kanungo class-a keeping in view the status of his father. later on, the petitioner submitted an application on june 15, 1983 that if the post of naib tehsildar was not available, he might be considered for the post of kanungo. under the punjab tehsildari rules, 1932 as applicable to the state of haryana upto 1989 when these were substituted by the haryana revenue department naib tehsildars (group-c) service rules, 1988 with effect from january 6, 1989, the minimum qualification prescribed for appointment as naib tehsildar by direct recruitment is graduation from a recognised university. the petitioner passed his graduation in the year 1986. he did not possess the requisite qualification prescribed for the post of naib tehsildar on june 15, 1983 when he submitted an application for appointment as naib tehsildar or in the alternative, as kanungo on compassionate grounds. he submitted an application to the commissioner, revenue department, haryana that he should be appointed to the post of naib tehsildar. the financial commissioner and secretary to govt. haryana, revenue department vide letter dated june 9, 1987, requested the chief secretary to government, haryana, for granting approval to the appointment of the petitioner against the vacant post of kanungo in the head office (financial commissioner's office, aric branch). the state government granted the approval and the petitioner was offered the post of kanungo. the petitioner accepted the offer of appointment and joined against the said post.3. the petitioner moved this court on november 17, 1988 through this writ petition claiming the relief afore mentioned. when the writ petition came up for motion hearing, the learned counsel for the petitioner relying upon a decision of this court reported as tarsem kumar sehgal v. state of punjab and anr., 1986 (3) s.l.r. 774, urged before the bench that the petitioner was entitled to be appointed as naib tehsildar from the date on which he became eligible for appointment as such. on november 18, 1988. the bench passed the following order:-'cities 1986(3) s.l.r. 774.admitted d.b. to be listed for final hearing on 1st december, 1988.'it is how this petition has been listed before us.4. indisputably, on the date when the petitioner's father died, he was not possessed of the minimum qualification prescribed for the post of naib tehsildar by direct recruitment. he graduated in 1986. since on the date when his father expired he was not eligible for appointment to the post of naib tehsildar or as kanungo, he was offered the post of a clerk, which he declined to accept. on his representation, the state government decided to appoint him as kanungo.5. the learned counsel for the petitioner submits that although the petitioner was ineligible for appointment as a naib tehsildar on the date when his father expired, but his claim for appointment to the post of naib tehsildar on compassionate grounds under the state government's policy decision should be considered from the date he had acquired the requisite qualification. it is not disputed that on the date when the father of the petitioner expired, the petitioner was only a matriculate and the state government offered him the post of a clerk for which he was eligible. he declined to accept the offer. the government's policy decision dated july 13, 1971, on which the reliance is placed, has not got a statutory force. it contains instructions and the government has to adhere to it as far as possible. policy decision does not confer any legal right on the heirs of a deceased government employee. it contains benevolent provisions in order to ameliorate the suffering of the family of a deceased government employee, which is rendered hapless, when the bread earner has died. a mandamus cannot be sought without a legal right. there must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. a person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. (see in this 'connection, muni subrat jain etc. v. state of haryana, a.i.r. 1977 s.c. 276).6. we do not think that in the instant case the petitioner is entitled to the equitable relief. he is claiming appointment to the post of naib tehsildar on compassionate grounds under the government's policy decision dated july 13, 1971. he was not satisfied with the post of clerk offered to him to which he was found entitled to on the death of his father. on attaining higher qualifications after lapse of about five years of his father's death, he made claim for the higher post of naib tehsildar. as no post of naib tehsildar was available, the state government offered him the post of kanungo, which he accepted. if now a direction is issued to the respondents to offer him appointment as a naib tehsildar, he will claim seniority over large number of naib tehsildars who were either recruited by direct appointment or promoted from lower posts. it will cause great hardship to them. granting of the equitable relief to the petitioner at this stage will result in manifest injustice to them.7. in fairness to the learned counsel for the petitioner it is necessary to deal with the judgments referred to by him at the bar and these are:-(1) praveen kumar v. state of haryana and ors., c.w.p. no. 179 of 1990) decided by j.l. gupta, j. on july 14, 1992.(2) harpal singh v. state of haryana, (c.w.p. no. 5274 of 1993), decided by a division bench of this court on october 22, 1993.(3) tarsem kumar sehgal v. the state of punjab and anr., 1986(3) s.l.r. 774.8. in praveen kumar's case (supra), the petitioner's father, who was deputy superintendent of police, died while in service. the petitioner was offered appointment to the post of sub inspector of police, r's father, who was which was accepted by him. while he was working as such, one sh. gurdev singh,. deputy superintendent of police, died and his son was appointed as inspector of police. the petitioner moved an application that he should be; accorded the same treatment as was accorded to sh. gurdev singh's son. the prayer was declined. he moved this court through cwp no. 179 of 1990 and the learned single judge held that the action of the state government was discriminatory. similarly situated persons could not be treated differently. it was on these undisputed facts that the learned single judge issued the directions. the learned judge did not examine whether a writ of mandamus could be issued. this decision was rendered in view of the peculiar facts of the case and cannot be cited as an authority for deciding the proposition arising in this case.9. in harpal singh's case (supra), the petitioner's father died while in government service. the petitioner applied for the post of naib tehsildar under the policy decision. he was a graduate and on these undisputed facts the bench ordered that he should be allowed appointment against the post for which he possessed the minimum educational qualifications. the ratio of this judgment has no bearing to the facts of the instant case.10. in tarsem kumar sehgal's case (supra), the bench posed the following question:-'the short question that falls for consideration is as to whether the petitioner's qualifications for being appointed under the given priority scheme to a post is to be judged on the date when he first applied for the post immediately after the death of his father or the date on which he was actually offered the employment.'and the same was answered in paragraph 5 of the report, which reads thus:-'it is not disputed that the petitioner satisfied the educational and other requirements for the post of inspector. he was, therefore, entitled to be appointed as an inspector and not as a clerk because on that date he stood in a position identical to the position of the persons named above in regard to his right to be appointed to the post of inspector.'the bench observed that the petitioner's claim should be considered for the post on the date when the appointment was offered to him. the ratio of this judgment supports the contention of the state rather than that of the petitioner. on the date when the petitioner was offered the post of kunungo, he was found ineligible for appointment as kanungo was accepted by him.11. for the reasons stated above, we find no merit in the writ petition and the same is dismissed.