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Judgment
A.Badharudeen, J
The original respondents 1 to 4 in W.P(c).No.4990/2011 before this Court have preferred this intra court appeal under Section 5 of the High Court
Act, arraying the petitioner and respondent No.5 as the respondents herein, challenging judgment dated 18.01.2021 rendered by the learned Single
Judge in the above Writ Petition.
The parties in this appeal are referred with reference to their status in the Writ Petition.
Brief facts of the case:
The petitioner had filed the Writ Petition challenging Exts.P8 and P14 orders as per which his applications for appointment under the dying in harness
scheme applicable to the Food Corporation of India (F.C.I), the 1st respondent, were rejected on the ground of delay.
The prayers in the Writ Petition are as follows:
“(i) To issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exts.P8 and P14 and quash the same;
(ii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to consider the petitioner for appointment under the
dying in harness scheme;
(iii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to appoint the petitioner in a suitable post under the
dying in harness scheme, in accordance with law;
(iv) To declare that the petitioner is entitled for appointment under the dying in harness scheme under the respondents: and
(v) To grant such other and further reliefs as are just, proper and necessary in the facts and circumstances of the case.â€
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The learned Single Judge addressed the issue and finally allowed the Writ Petition and thereby Exts.P8 and P10 were set aside (Exts.P8 and P14)
and consequently directed the competent respondents to consider the claim of the petitioner as expeditiously as possible, but not later than 4 months
from the date of receipt of a copy of the judgment.
Respondents 1 to 4, who are F.C.I and its officials, filed this Writ Appeal. The first contention posed is that even though Ext.P1 is only a forwarding
letter issued by the 4th respondent to the 3rd respondent with the application of the petitioner dated 3.11.2004 along with documents attached therein,
the learned Single Judge had mistakenly read Ext.P1 as a letter issued by the F.C.I directing the petitioner to produce documents to substantiate his
claim under DDE quota.
While addressing this challenge, a perusal of Ext.P1 is necessary. Ext.P1 dated 1.3.2005 is a letter issued by the Assistant Manager, Administration,
F.C.I to the Senior Regional Manager, FCI, Trivandrum for forwarding the application put in by the petitioner herein. On perusal of the judgment
impugned, discussion regarding Ext.P1 could be gathered in para.7, which reads as under:
“7. It is conceded that the petitioner's application for appointment under the dying in harness was made within four months after his father unfortunately died
on 28.06.2004. On receipt of the said application, the first respondent â€" FCI issued Ext.P1 letter to him asking to produce certain documents. Pertinently,
neither a legal-heirship certificate nor statement of immovable property are listed therein.â€
On perusing para.7, it appears that Ext.P1 referred therein, in fact is Ext.P6. In this connection, it is relevant to refer Ext.P6 dated 30.05.2010. Ext.P6
was issued from the District Office, FCI, Alappuzha, to the petitioner, which is extracted below for easy understanding:
“The required documents like Legal Heir ship Certificate and Immovable Property Statement has not yet furnished by you despite repeated communication
from this office. Now our Regional Office is pressing us to forward the same without much delay.
Hence it is once again requested to you that the document mentioned above may please be furnished at the earliest to process your DDE quota application.â€
In fact Ext.P6 is the letter dt.3.5.2010 whereby the petitioner was directed to produce documents inclusive of legal heirship certificate and immovable
property statement. Thus Ext.P6 to be considered as the document dealt in para.7 of the impugned judgment instead of Ext.P1. The narration in para.7
of the impugned judgment cannot have any adverse effect on the contesting respondents as the said narration could be gathered from Ext.P6. Be it so,
this challenge at the instance of the Food Corporation is of no significance.
The second ground pointed out by the learned counsel for the contesting respondents is that the petitioner failed to produce legal-heirship certificate
or immovable property statement till 13.10.2010 and Exts.P9 and P10 would clearly reveal that the petitioner had obtained the same only after Ext.P8
letter was issued to him by the F.C.I stating that the competent authority had decided not to register his case. Further it is contended that Ext.P12
representation submitted by the petitioner would go to show that the petitioner could not submit the legal-heirship certificate and property statement so
far. Therefore, the learned Single Judge ought not have stated that no documents were produced on record to show that the petitioner had never
produced any document prior to Ext.P8.
In this context, it is interesting to note that the legal-heirship certificate was obtained by the petitioner during July, 2005 in Malayalam language.
However, he had produced the English version of the same on 30.09.2020 and Ext.P9 is the copy of the same. Similarly, Ext.P10 immovable property
statement was also obtained on 17.09.2010. That is to say, after issuance of Ext.P12, the petitioner produced the documents sought for as per
Ext.P12.
Another point argued is by highlighting the scheme of dying in harness. It is pointed out that dying in harness scheme was introduced to protect the
family from immediate and severe financial crisis and the said benefit could not be extended to the petitioner, who had produced the documents in
support of his claim after 6 years.
The learned counsel for the writ petitioner submitted that the petitioner put up his claim for compassionate appointment as early as on 3.11.2004
and thereafter he was directed to produce the legal-heirship certificate. According to the learned counsel for the petitioner, the process for issuing
legal-heirship certificate is time taking and therefore the petitioner could produce the certificate after effecting gazette notification on 10.05.2005.
Thereafter on 4.7.2005, legal-heirship certificate was produced as Ext.P4. However, the F.C.I did not consider the application put up by the petitioner
for non production of English translation of the legal-heirship certificate as well as property details pertaining to his family. According to the learned
counsel for the petitioner, F.C.I is delaying the request of the petitioner without any basis on lame excuses and therefore the learned Single Judge
rightly considered the grievance of the petitioner and appropriate direction to protect the interest of the petitioner was issued as per the impugned
judgment. The said judgment is not liable to be interfered.
While re-appreciating the materials on record to address the contentions raised by the contesting respondents, it is discernible that as per Ext.P1
letter dated 01.03.2005, the F.C.I, District Office, Alappuzha forwarded application dated 3.11.2004 along with other documents submitted by the
petitioner to the Regional Manager, FCI, Trivandrum. A perusal of Ext.P1 would show that as early as on 3.11.2004 (after the death of his father on
28.6.2004) the petitioner put up his claim for compassionate appointment under DDE quota. As per Ext.P2 letter dated 23.03.2005, the District Office
of F.C.I, Alappuzha addressed the petitioner and directed him to produce the legal-heirship certificate. Legal-heirship certificate was obtained on
4.7.2005 and produced as submitted by the learned counsel for the petitioner. In Ext.P2, there is no mention that legal-heirship certificate should be
produced in English language or translating the same in English language. In obedience to Ext.P2, the petitioner took steps to get legal-heirship
certificate as could be gathered from Ext.P3 gazette notification. In page No.2 of Ext.P3 (running page 13) draft notification dated 18.04.2005
published on 10.05.2005 seen appended. As per Ext.P4 dated 4.7.2005 legal-heirship certificate, Smt. V.M.Khadeejakutty, the wife of late
M.Abdullakoya and A.K.Sareena & A.K.Anees, his children, were certified to be the legal heirs.
Ext.P6 is a very relevant document in this case. Ext.P6 is a letter issued by the Area Manager, Administration, FCI District Office, Alappuzha to
the petitioner. We have already extracted the contents therein, herein above. Even on a cursory reading of the recitals in Ext.P6 would convincingly
show that as on 3.5.2010 also, the F.C.I was ready to consider the application of the petitioner and accordingly he was directed to produce the
documents at the earliest to process DDE quota application. Ext.P9 dated 30.09.2010 is the English translation of the legal-heirship certificate and
Ext.P10 is the property statement in English format dated 17.09.2010 as we have already pointed out. Thus it is clear that after issuance of reminder
to produce documents as per Ext.P6 dated 6.5.2010 the petitioner produced Exts.P9 and P10 on 30.09.2010 within a reasonable time. As per Ext.P12,
again on 13.10.2010 the petitioner made request to consider his application under the DDE quota.
Thereafter on 1.1.2011, the claim of the petitioner was rejected as per Ext.P14 stating that the legal-heirship certificate and property details had
been furnished after elapse of more than 6 years in support of his claim for appointment. Hence his claim could not be considered.
In this context we are inclined to give emphasis on Ext.P6. It is not in dispute that the father of the petitioner died as early as on 28.06.2004. The
petitioner put up his application for compassionate appointment for the first time on 3.11.2004 as could be read out from Ext.P1. So the petitioner put
up his application soon after the death of his father and no delay in this matter could be attributed against him. It is true that the application for
appointment on the DDE quota sought for by the petitioner was not sanctioned for non production of legal-heirship certificate. However, on 3.5.2010,
as per Ext.P6 letter, the petitioner was given direction to produce legal-heirship certificate and immovable property statement to process his
application. That would go to show that as on 3.5.2010 also the Corporation was ready and willing to process the application of the petitioner and at
the time of issuance of Ext.P6, delay as a matter of fact was not pointed out or considered by the F.C.I. As already pointed out, on 30.09.2010 and
17.09.2010, the petitioner produced English version of legal-heirship certificate as well as property statement in English format after receipt of Ext.P6
on 3.5.2010. If so, the petitioner could not be faulted on the ground of lethargy in submitting the documents. We do not think that Food Corporation can
justify the rejection of the claim put forth by the petitioner after giving Ext.P6 letter alerting him to produce the document without much delay to
process his claim. In fact, the petitioner produced the documents after Ext.P6 within a period of 5 months. Thereafter, his claim was rejected as per
Ext.P14 mainly on the ground that the petitioner furnished legal-heirship certificate and property details after elapse of more than 6 years in support of
his claim. It is a well recognised principle that nobody could approgate and reprogate or to be hot and cold or affirmative and dissident at a time. It is
surprising to see that as on 3.5.2010, FCI was ready to process the application of the petitioner on production of the required documents without
further delay and thereby he was directed to produce the said documents. If the Corporation was of the opinion that the claim put up by the petitioner
was belated, then the same ought to have been informed instead of issuing Ext.P6, since Ext.P6 was issued after almost 6 years. Thus it has to be
held that after expressing willingness to process the application put up by the petitioner as recited in Ext.P6, when the petitioner produced English
translation of legal heirship certificate dated 30.09.2010 and property detail certificate dated 17.09.2010, his application was rejected on the ground of
delay.
It is true that belated applications are liable to be rejected for justifiable reasons. In this regard, decisions on this point required to be referred.
(i) In the decision in [1994 KHC 1178 : (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : 1994 (27) ATC 537 : 1994(2) CLR 4U], mesh Kumar Nagpal
v. State of Haryana and Others, it was held that compassionate employment is a means to tide over the sudden financial crisis that has fallen upon
the dependent of a government servant due to his untimely death and belated claims for such employment should not be entertained.
(ii) In the decision in [2015 (5) KHC 497 : 2016 (1) KLT 48], Sameena A. R. v. State of Kerala and Others, it was held that when an application is
preferred out of time, no right to appointment is created.
(iii) In [2012 KHC 4348 : (2012) 7 SCC 248 : 2012 (3) KHC SN 12 : 2012 (6) SCALE 172 : 2012 (3) KLT 214 : AIR 2012 SC 266S5]h, reejith L. v.
Deputy Director (Education), Kerala and Others, it was held that the availability of vacancy and application for compassionate employment are
distinctly different matters and an application ought to be made within the time stipulated whether vacancies are available or not. Paragraph 18 and 19
of the Shreejith's case (supra) reads thus:
The High Court appears to have confused an application required to be filed within the period stipulated for the purpose with the availability of a vacancy
against which such an application could be considered by the Manager. These were two distinctly different maters. What was important was the making of an
application for appointment on compassionate basis within the period stipulated for the purpose. Whether or not a vacancy is available had nothing to do with
the making of the application itself.
An application could and indeed ought to have been made by Respondent 1 within the time stipulated, regardless whether there was a vacancy already
available or likely to become available in the near or distant future. Respondent 1 having failed to do that, could not claim a compassionate appointment
especially when there was nothing on record to suggest that the family was in penury notwithstanding the lapse of a considerable period since the demise of the
breadwinner; during which period Respondent 1 had got married and settled down in life and supports a family. The High Court was in that view clearly in error
in issuing a mandamus to the Manager to appoint the respondent on compassionate basis which order calls for interference and is hereby reversed.
(iv) In [2015 KHC 4031], Vijaya Ukarda Athor (Athawale) v. State of Maharashtra & Ors. it is held that appointment on compassionate
ground cannot be claimed as a matter of right but can be claimed only in terms of the Rules or Regulations framed in this regard.
The decision reported in Shreejith L. v. Deputy Director (Education), Kerala and Others (supra) was relied on by the learned Single Judge
while giving direction to the competent respondent to consider the claim of the petitioner. In this decision, the necessity of filing an application within
the time stipulated irrespective of availability of vacancy was considered.
Relevant question in the instant case is as to whether the petitioner put up his claim for compassionate employment belatedly. In this context, as
we have already pointed out and borne out from Ext.P1, the petitioner put up his application without any delay as on 1.3.2005. It is true that he could
get the legal heirship certificate only on 4.7.2005. It is known to everybody that the procedure provided to get legal heirship is cumbersome, for which
the petitioner could not either be blamed or to be baffled. The records would go to show that the petitioner produced legal heirship certificate given to
him in Malayalam language. The petitioner cannot be blamed for this as it is well known to all concerned that in the State of Kerala, the legal-heirship
certificate is given in Malayalam language. Thereafter the Corporation insisted for production of its English translation. Some delay occurred during
this period. It is pertinent to note that the Corporation after considering all these facts issued Ext.P6 during 2010 expressing willingness to process the
application and then took a `U’ turn on 1.11.2011 by issuing Ext.P14. Therefore, no laches on the part of the petitioner could be found to reject his
application. Therefore, the learned Single Judge rightly dispelled the contention raised by the Food Corporation and ordered to consider the application
of the petitioner.
The above discussion would lead to the conclusion that the contentions raised by the FCI now before this Court also cannot succeed. In view of
the matter, the direction given as per the impugned judgment, after setting aside Exts.P8 and P14 (mistakenly shown as Exts.P8 and P10) is liable to
be confirmed and we do the same. Consequently, the Writ Appeal stands dismissed.
It is specifically ordered that the Food Corporation shall process the application of the petitioner within six weeks from the date of receipt of a copy of
this judgment or its production as per law, in tune with directions issued as per the judgment impugned.