Limitation Of 5 Years For Seeking Compassionate Appointment Starts On The Date When Cause Of Action Arises', Patna High Court
A Division Bench of the Patna High Court comprising Justices P. B. Banjanthri and B. PD. Singh allowed an appeal challenging the decision wherein an application for compassionate appointment to the post of Constable on the ground that the application was not filed before the authorities within the stipulated time period of 5 years was dismissed by a Single Judge Bench. The Court observed that the Appellant could not have filed the application seeking appointment right after his father's death since he was dismissed from service six months before his death. It was held that the time period of five years was to be considered from the date of order setting aside the dismissal order.
Background
The Appellant's father named Satyendra Singh was serving as a Constable. He was dismissed from service on 08.12.2004 and expired on 09.12.2005.
Satyendra Singh passed away after six months of the order of dismissal. His wife appealed before the D.I.G and the appeal was dismissed on 15.02.2006. Later she filed a memorial before the D.G. cum I.G which was also not considered stating that the wife of an employee had no right to file a memorial.
Pertinently, the Appellant's father was dismissed based on his abusive behaviour towards the senior Officers, in addition to which, he had also fired two rounds while he was in a drunken state. Consequently, a Disciplinary Proceeding was initiated against him. The Appellant argued before the Single Judge that the punishment awarded to his father was inordinate as he had a good service record of twenty years which needed to be taken in view before dismissing him.
The Single Bench held that the wife of Satyendra Singh being his legal heir was entitled to seeking any legal remedies and the D.G. - cum- I.G should have considered her memorial. Accordingly, the Court directed the D.G. - cum- I.G to consider the memorial of the deceased constable's wife within 6 months of filing the memorial.
On 26.04.2011, the dismissal order was set aside and the wife of the deceased Constable approached the Court seeking appointment of her son to the post of Constable on 01.10.2013. However, the Cause of Action arose on 26.04.2011 because the order of dismissed was quashed on the said date.
The Single Judge Bench dismissed the application based on the delay in seeking compassionate appointment. It observed that the application wasn't filed within five years of the death of Satyendra Singh and was thus liable for rejection.
Dissatisfied with the order, the Appellant filed an appeal before the Division Bench.
Findings of the Court:
The Court observed that since the Appellant's father was dismissed on 08.12.2004 and expired on 09.12.2005, both the wife of the deceased as well as the Appellant could not seek compassionate appointment within five years since the Order of dismissal was still in place.
The Court criticized the decision of the Single Judge wherein these facts were not considered before dismissing the application. It held that the cause of action to file a petition seeking compassionate appointment arose on the date of setting aside the order of dismissal i.e., 26.04.2011 and the Appellant and his mother could not have approached the Court before that.
Ruling out the technicalities concerning the time period within which the compassionate appointment was to be sought and observing that the Appellant could submit an application within five years starting from 26.04.2011, the Court allowed the appeal. It directed the concerned authority to examine the grievance of the appellant afresh and pass a detailed speaking order within a period of three months.
Case Title: Sunny Kumar versus e State of Bihar & ors
Counsel for the Appellant: Mr. Uday Prasad Singh, Adv. Mr. Praveen Kumar Pandey, Adv
Counsel for the Respondent: Mr. Saroj Kumar Sharma (AC to AG 3)