LILU PASWAN v. THE STATE OF BIHAR & ORS

Reliance is also placed on an order of this Court in C.W.J.C. No.11918 of 2009 disposed of on 10.9.2009 granting liberty to file a representation before the District Magistrate. Learned counsel for the State has opposed this writ application and submits that it was inordinately barred by delay and that mere recommendation for appointment creates no right. Once the policy was withdrawn before the recommendation could be acted upon, no right accrues to the petitioners. The post of Chowkidar as per the petitioners themselves was declared to be that of a government servant in the year 1990. Any appointment on a government post can only be in accordance with Article 14 of the Constitution of India which entails a regular advertisement followed by a competitive selection process for employment under the Government. Opportunity is to be made available to one and all who consider themselves eligible to apply as government service is a national wealth to be equitably distributed. To limit the right for consideration on basis of descent only shall be doing violence to Article 15 of the Constitution by debarring others from consideration on grounds of absence of descent. Compassionate appointment is an exception to Article 14 and therefore has to be considered strictly in accordance with the 4 policy governing the same. The aim and purpose of compassionate appointment is to provide succour to the family of the deceased for a sudden and untimely death leaving the family in lurch. Retirement is a foregone conclusion and cannot be classified as a sudden and untimely death leaving the family in lurch. Any claim for compassionate appointment makes an inroad into Article 14 for competitive appointment, and has to be strictly construed. This Court finds it difficult to hold that a claim for compassionate appointment much less on descent will lie in a case of retirement of a Government servant. Learned counsel for the State has also rightly raised the objection of delay with regard to a claim on a recommendation made as far back as on 19.10.2004. There is no explanation for the delay also, if there can be any justification for such claim. The learned counsel for the State is further right in his submission the order dated 19.10.2004 was only a recommendation and did not create a vested right for appointment. Before the recommendation could fructify in appointment,the policy stood withdrawn on 11.11.2004. If any appointments have been made contrary to the law as discussed above in other districts, no claim for equality under Article 14 of the constitution shall lie as there cannot be a claim of equality in illegality. The Supreme Court in 2007) 11 SCC 172 (Vishal Properties (P) Ltd. Vrs State of U.P. & ors.) has held in paragraph 13 as follows:- 5 “13. Even otherwise Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality, Therefore we are not bound to direct any authority to repeat the wrong action done by it earlier.......” In the light of the aforesaid discussion this Court finds it difficult to grant relief to the petitioners even in terms of the order of this Court in C.W.J.C. No.11918 of 2009. This Court is not persuaded in the nature of the present case to grant any liberty to file any representation keeping in mind the observations of the Hon’ble Supreme Court with regard to the representation syndrome and the litigation it generates, held in (2008) 10 SCC 115 (C. Jacob Vrs Director of Geology and Mining and another) at paragraph 9 to 11 of the same. “9. The courts/ tribunals proceed on assumption , that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any “decision” on rights and obligations of parties. Little do they realize the consequences of such a direction to “consider”. If the representation is considered and accepted, the ex-employee gets a relief , which he would not have got on account of the long delay , all by reason of the direction to “consider”. If the representation is considered and rejected , the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunal/High 6 Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.

10. Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations cannot furnish a fresh cause of action or revive a stale or dead claim.

11. When a direction is issued by the court /tribunal to consider or deal with the representation, usually the directee ( person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal , such an order does not revive the stale claim, nor amount to some kind of “acknowledgement of a jural relationship” to give rise to a fresh cause of action.” In the result, this writ application is dismissed. NKS/- ( Navin Sinha, J)