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*HON’BLE SRI JUSTICE RAVI NATH TILHARI
+WRIT PETITION No.12227 of 2021
% 28.07.2022
# Thurpati Parvathi Devi
….Petitioner.
And:
State of Andhra Pradesh,
represented by its Secretary to
Government,
School Education Department,
Secretariat, Velagapudi,
Amaravati and others.
….Respondents
! Counsel for the petitioner : Sri Javvaji Sarath Chandra
^ Counsel for the respondents : Government Pleader for School
Education
Gist:
Head Note:
? Cases referred:
1
(2019) 14 SCC 646
2
(1998) 5 SCC 192
3
(2010) 11 SCC 661
4
(2008) 13 SCC 730
5
(2002) 1 SCC 134
6
(2005) 7 SCC 667
7
(2009) 17 SCC 27
8
(2013) 5 SCC 479
9
(2022) 2 SCC 25
10
1997 (7) ScC 463
11
2010 (6) SCC 614
12 2004 (11) SCC 364
13 1
2007 (7) SCC 798
14.(2020) 9 SCC 356
2
HON’BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION No.12227 of 2021
28.07.2022
Between:
Thurpati Parvathi Devi
….Petitioner.
And:
State of Andhra Pradesh,
represented by its Secretary to
Government,
School Education Department,
Secretariat, Velagapudi,
Amaravati and others.
….Respondents
DATE OF JUDGMENT PRONOUNCED:28.07.2022.
SUBMITTED FOR APPROVAL:
THE HON’BLE SRI JUSTICE RAVI NATH TILHARI
1. Whether Reporters of Local newspapers may Yes/No
be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the fair
Copy of the Judgment? Yes/No
RAVI NATH TILHARI, J
3
HON’BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION No.12227 of 2021
JUDGMENT:
1. Heard Sri Juvvaji Sarath Chandra, learned counsel for the
petitioner and the learned Government Pleader for School Education
appearing for the respondents 1 to 4.
2. The present writ petition is filed under Article 226 of the
Constitution of India, for the following reliefs:
“It is humbly prayed that this Hon‟ble Court may be pleased
to issue a Writ, direction or order especially in the nature of
Writ of Mandamus declaring the proceedings vide Rc.No.23/
A2/ 2019, dated 07.03.2019 (Impugned Proceedings) issued
by the Respondent No.3 and respondents consequently
terminating the services of petitioner herein from the
respondent No.6 as “Record Assistant” is arbitrary illegal,
unsustainable and violative of Art.14, Art.16, Art.19 and
Art.21 of the Constitution of India besides being in
contravention of G.O.Ms.No.165, GAD (Ser-A) Deptt,
Dt.20.03.1989 read along with Memo No.618/Ser.A/78-11,
GAD (Ser-A) Dept., 17.12.1979 and consequently set aside
the same and direct the respondents to reinstate the
petitioner services in respondent No.6 school by reckoning
the service of the petitioner from the date of her original
appointment i.e 01.02.2019 and consequently providing her
with all consequential benefits thereto including the salary
and other benefits payable during the interregnum period of
her illegal termination and pass such other order or orders.”
3. The petitioner‟s father late Venkata Ramana, a teacher in St.
Anthony‟s R.C.M. Aided High School, 6th respondent, expired in road
accident on 07.06.2006 while in service. The petitioner‟s mother (widow
of late Venkata Ramana) applied for appointment on compassionate
ground vide Registration No.2220 on 20.03.2007, followed by the 2nd
application with similar request vide Registration No.1990 dated
16.03.2009.
4
4. The petitioner was aged about 14 years at the time of the death of
her father. She did her Graduation from Andhra University on
24.09.2016 and had completed Diploma in Education in May, 2012.
She submitted an application to the 4th respondent-the District
Educational Officer, Vizianagaram, to consider her for compassionate
appointment. Her mother had given no objection in her favour. Her
request was forwarded for consideration to the 3rd respondent, duly
communicated to the petitioner by the 4th respondent vide
communications dated 09.12.2013, 08.12.2015 and 14.07.2017.
5. The State Government vide Government Memo
No.12080/COSE/A2/2004-4 Education (COSE) and 20th October, 2004
imposed a ban on creation/filling up of existing vacancies of the aided
posts in the recognized aided schools and vide Government Memo dated
14.11.2005 issued orders that the ban orders were applicable for the
appointments on compassionate grounds in the aided schools as well.
6. The State Government withdrew the ban completely vide
G.O.Ms.No.40 School Education Department dated 30.06.2017 and vide
G.O.Ms.No.10 dated 25.01.2018, provided for the compassionate
appointments to the dependants of the deceased employees who worked
in the recognized aided schools, in due relaxation of Government Memo
dated 20.10.2004, and died while in service, in the interregnum period
with effect from 20.10.2004 to 05.10.2009.
7. Pursuant to the G.O.Ms.No.10 dated 25.01.2018, the petitioner,
vide representation dated 13.03.2018 requested the 4th respondent to
consider her case. The 3rd respondent Regional Joint Director of School
Education directed the 4th respondent, vide proceedings dated
30.01.2019, to take necessary steps and the 4th respondent vide
proceedings dated 02.01.2019 and 30.01.2019 accorded permission to
the 5th respondent- Manager of R.C.M Schools, to consider the
5
petitioner‟s case for compassionate appointment in the vacancy of
„Record Assistant‟ which post had fallen vacant due to the death of the
petitioner‟s father. The 5th respondent appointed the petitioner vide
proceedings Rc.No.Apnt/Comp.Gr/SP-6/Arc.Vsp2018 dt 01-02-2019 as
“Record Assistant” on compassionate ground. She reported the 6th
respondent and the entries were also made in the Service Register
recording her appointment. The petitioner‟s application, the provisionl
orders etc., were sent for acceptance to the 3rd respondent.
8. The 3rd respondent vide proceedings Rc.No.23/8/2019 dated
07.03.2019, impugned in the writ petition, returned the proposal to the
4th respondent to re-examine the same in terms of G.O.Ms.No.165
General Administration (Ser.A) dated 20.03.1989 and subsequent
G.Os/instructions, if any, and to resubmit the proposal, if eligible, for
taking necessary action in the matter, on the ground that on verification
of the proposal it was identified that the petitioner‟s age was 14 years
(minor) as per the Secondary School Certificate (S.S.C) issued by the
Board of Secondary Education, Andhra Pradesh, (D.O.B 29.03.1999), at
the time of death of her father on 07.06.2006.
9. The petitioner was also asked to withdraw from the service of the
6th respondent after few months of her joining as „Record Assistant‟.
10. Learned counsel for the petitioner submitted that the petitioner‟s
mother (Widow of the deceased employee) had timely applied for
compassionate appointment in her favour but in view of the ban
imposed on compassionate appointments in the recognized aided
institutions her case was not considered by the respondents. He
further submitted that the petitioner at the time of death of her father
was aged about 14 years, but during the ban period she attained the
age of majority and also acquired requisite qualifications and became
eligible for the post of Record Assistant in the institution of the 6th
6
respondent. Consequently, on the lifting of the ban, she applied for
compassionate appointment in her favour as she and her mother have
no source of income for their sustenance supported by the requisite
certificate issued by the revenue officials. The petitioner‟s mother had
also given no objection in favour of the petitioner.
11. Learned counsel for the petitioner submitted that the view taken
by the 3rd respondent in the impugned order is unreasonable, arbitrary
and against the object of grant of compassionate appointment. If there
had been no ban imposed by the 1st respondent, the petitioner‟s mother
would have been given compassionate appointment. The petitioner
cannot be made to suffer after the ban is lifted vide G.O.Ms.No.10, if in
the meantime the petitioner attained majority and acquired requisite
qualification for the post. The proposal of the petitioner‟s case cannot be
returned on the ground that she was 14 years of age and not 16 years
on the date of death of her father, as in the impugned order.
12. Learned Government Pleader for School Education supported the
impugned order as justified. He submitted that the G.O.Ms.No.10 dated
25.01.2018 provided specifically that the eligibility/qualification etc., of
the dependants of the deceased employee shall be considered as on the
date of the death of the employee and all other conditions with regard to
compassionate appointment shall apply. Consequently G.O.Ms.No.165
dated 20.03.1989 shall also apply and the conditions thereunder
cannot be ignored. He submitted that on the date of death of the
petitioner‟s father, the petitioner was aged about 14 years and in terms
of G.O.Ms.No.165, if the petitioner had been 16 years of age on the date
of the death of her father, she could have been given appointment, on
lifting of the ban on compassionate appointments. His submission is
that the minor dependant seeking employment on compassionate
ground should apply only after attaining the age of 18 years as per
7
G.O.Ms.No.165 which itself is subject to the condition in item 13 of the
Government Memo No.618 dated 17.12.1979 according to which, the
relief can be asked within a reasonable time, which may be two years
from the date of demise of the Government servant.
13. Learned Government Pleader next submitted that in view of the
ban on filling up of existing vacancies in Grant in Aid Schools, the
proposals were not being considered and consequently, the proposal of
the widow of the deceased (mother of the petitioner) did not require any
consideration at that point of time.
14. I have considered the submissions advanced by the learned
counsels for the parties and perused the material available on record.
15. The point which arises for determination is as follows:
“Whether the refusal to give compassionate appointment to
the petitioner on the ground that she was 14 years of age
and not 16 years on the date of death of her father, is
legally sustainable, keeping in view that at the time of
death of the petitioner‟s father, ban was imposed on
compassionate appointments vide Government Memo
dated 20th October, 2004, which ban was lifted vide
G.O.Ms.No.10, dated 25.01.2018, making the dependants
of the deceased employees who died while in service during
the period from 20.10.2004 to 05.10.2009, eligible for
compassionate appointment?”
16. During arguments specific quarries were put to the learned
Government Pleader as follows:
a) whether the G.O.Ms.No.165 dated 20.03.1989 read with Item
No.13 of Government Memo dated 17.12.1979 provides that the
age of the dependant minor should be atleast 16 years on the
date of death of the employee? and
b) whether the petitioner‟s mother (widow of the deceased
employee) can be considered for appointment as she had
immediately applied on the death of her husband but her case
was not considered in view of the ban imposed?
8
17. The submission advanced by the learned Government Pleader to
the above said quarries shall be considered at the appropriate place.
18. The court now proceed to consider the point for determination.
19. The undisputed facts are that (i) the petitioner‟s father died on
07.06.2006 while in service on the post of „Record Assistant‟, ii) there
was ban imposed by the Government on the proposals for
compassionate appointment in the recognized aid institutions w.e.f
20.10.2004 upto 05.10.2009 which was lifted on 25.01.2018, iii) in
view of the ban, the proposal of the petitioner‟s mother for her
compassionate appointment was not considered, iv) the petitioner was
aged about 14 years at the time of the death of her father and during
the ban period she attained the age of majority, v) G.O.Ms.No.10 dated
25.01.2018 made the dependants of the deceased employee who died
while in service during the period w.e.f 20.10.2004 to 05.10.2019,
eligible for compassionate appointment, vi) the petitioner‟s father died
on 07.06.2006 during the ban period.
20. There is also no dispute that the only ground of return of the
proposal of petitioner‟s case for compassionate appointment vide the
impugned order, is that she was 14 years of age and not 16 years on
the date of death of her father.
21. The G.O.Ms.No.10 dated 25.01.2018 reads as under:
“GOVERNMENT OF ANDHRA PRADESH
ABSTRACTSchool Education Department-Scheme of compassionate
appointment to the dependents of the deceased employees of
the recognized aided institutions for the interregnum period
from 20.10.2004 to 05.10.2009 – Orders – Issued.
SCHOOL EDUCATION (PSI) DEPARTMENT
G.O.Ms.No.10 Dt:25.01.2018
9
1.G.O.Ms.No.687,GA(Ser.A) Department, dated 03.10.1977.
2.G.O.Ms.No.612,GA(Ser.A) Department, dated 30.10.1991.
3.G.O.Ms.No.30,Education (Ser.V) Department, dated
01.02.1994.
4.Govt., Memo.No.766/Ser.IV-1/94-2, Edn (Ser.IV) Deptt.,
dated 18.05.1995.
5.Govt., Memo.No.1366/Ser.IV-1/94-2,Edn (Ser.IV) Deptt.,
dated 04.07.1997.
6.Govt., Memo.No.12080/COSE/A2/2004-
4,Education(COSE) Deptt., dated 20.10.2004.
7.Govt., Memo.No.8544/PS.I/2005-
3,Edn(SE.PS)Deptt.,dt.14.11.2005.
8.G.O.Ms.No.113, Education(SE.PS1) Deptt., dated
06.10.2009.
9.Govt., Memo.No.20360/SE.PS1/A1/2010,dated
09.06.2010.
10. Govt., Circular Memo.No.35252/Ser.(G)/A1/2011-
1,dated 04.12.2013
11.G.O.Ms.No.40,School Education(PS) Deptt., dated
30.06.2017.
ORDER:-
In this G.O first read above, scheme of compassionate
appointments to the dependents of the deceased Government
employee was introduced. In the G.O second read above, further
instructions were issued on the scheme of compassionate
appointments to the dependents of the deceased Government
employees, in the G.O third read above; the scheme of
compassionate appointments was extended to the employees working
in Aided/ZPP/Municipal Management Schools.
2. Government in the Memo fourth read above, clarified that the
children of the deceased employees working in Aided schools are
eligible for compassionate appointment based on the qualification in
any Government Office/Schools. Again in the Memo fifth read above,
Government have cancelled the orders issued dated 18.05.1995 and
specific instructions were issued to the effect that the children of the
deceased employees working in Aided Schools are eligible for
compassionate appointments only in that School. Subsequently, in
the Memo, Sixth read above, Government imposed ban on
creation/filling up of existing vacancies of aided posts in the
recognized Aided Schools and also issued orders that the ban orders
are applicable for the appointments on compassionate grounds in the
Aided Schools vide Memo, seventh read above.
3. In the G.O eighth read above, Government have revived the
scheme of compassionate appointment to the dependents of the
deceased aided employees working in the aided institutions in terms
of G.O.Ms.No.30, Education (Ser.V) Department, dated 01.02.1994,
by taking district as a Unit and providing them employment in
ZP/MPP/Government Offices (Not in aided institutions). However,
Government have clarified that the orders issued in the Memo, ninth
read above are with effect from the date of issue of G.O., i.e w.e.f
06.10.2009 (prospective) only.
4. Meanwhile, Government have received several
representations from the people‟s Representatives/Unions with a
request to extend the benefit the scheme of compassionate
appointments to the dependents of the deceased aided staff, with
effect from 20.10.2004 (with retrospective effect).
5. Government in the Memo, tenth read above have clarified
that the original scheme of compassionate appointment formulated
by the General Administration Department is applicable only to the
regular employees in Government Department and even though if
any Department/Corporation/Cooperative Society/Public Sector
Undertakings/Local Bodies (i.e Municipalities, Municipal
10Corporations, Zilla Parashads, Mandal Praja Parishads, Gram
Panchayats) have adopted the above scheme, their dependents
cannot be given compassionate appointment in the Government
Departments and they have to appoint only in their respective
office/ Organization as per their rules. If any Department has issued
any order in deviation to this, they are requested to withdraw such
instructions/orders, if any, immediately. These instructions should
be followed scrupulously and any instructions issued by any other
Department are repugnant to these instructions, the instructions
issued by this Department will prevail over the instructions issued by
any other department.
6. Government have withdrawn the ban memo issued in the
Memo, sixth read above completely, with immediate effect, vide G.O.
eleventh read above.
7. Government after careful examination of the matter and to
avoid hardship to the dependents of the deceased employees of the
recognized aided institutions and in the interest of justice and
equity, hereby order to make compassionate appointments to the
dependents of the deceased employees, who worked in the recognized
aided schools, duly relaxation of the Government Memo
No.12080/COSE/A2/2004-4, Education (COSE) Department, dated
20.10.2004 for the dependents of deceased employees in the
interregnum period i.e from 20.10.2004 to 05.10.2009 making them
eligible for compassionate appointments. However, the
compassionate appointments shall be made first in those aided
institutions, where the vacancy arose first due to death of the
employee, and if there are no such vacancies, then in any other
vacancies in aided schools. The orders of compassionate
appointment shall be come into force with prospective effect and the
eligibility/qualification etc., of the dependent shall be reckoned,
as on the date of death of the employee, all other conditions
with regard to compassionate appointment shall apply.
8. The Commissioner of School Education, A.P, Ibrahimpatnam,
shall take necessary action accordingly and to take appropriate
action for withdrawal of the Writ Petitions/Writ Appeals/SLPs etc., if
any filed on the above subject matter.”
(By order and in the name of the Governor of Andhra Pradesh)
ADITYA NATH DAS
SPECIAL CHIEF SECRETARY TO GOVERNMENT.”
22. The G.O.Ms.No.10 lifted the ban and made the dependents of the
deceased employees of the recognized aided institutions who died while
in service in the interregnum period w.e.f 20.10.2004 to 05.10.2009,
eligible for appointment in recognized aided schools on compassionate
basis, duly relaxing the Government Memo dated 20.10.2004. It
however provided that the eligibility/qualification etc., of the dependant
shall be reckoned as on the date of death of the employee and all other
conditions with regard to compassionate appointment shall apply.
11
23. In view of the aforesaid, the G.O.Ms.No.165 dated 20.03.1989 is
made applicable for the eligibilities/qualification etc., of the dependants
as mentioned thereunder.
24. The G.O.Ms.No.165 dated 20.03.1989 provides as under:-
“GOVERNMENT OF ANDHRA PRADESH
ABSTRACT
Public Services – Compassionate appointment of
son/daughter/spouse of deceased Government Servant-
Minimum age for appointment-Instructions-Issued-
Regarding.
GENERAL ADMINISTRATION (SERVICES-A) DEPARTMENT
G.O.Ms.No.165 Dt:20TH March, 1989.
1. Government Memo.No.618/Ser.A/78-11, G.A.D, dated
17th December, 1979
2. Government Order Ms.No.349, G.A (Ser.A),
Department, dated 12th June, 1984
3. From the Government of India Ministry of Personnel,
Public Grievances and Pension, Department, of Personnel and
Training, New Delhi, Office Memorandum F.No.14014/23/87,
Estt.(D) dated 17th February, 1988.
ORDER:-
1. It has been clarified in item No.13 in the Government
Memo first read above that a minor dependent should not be
considered for a providing employment under social security
scheme as there cannot be any contractual obligation between the
Government and employee who is a minor and can seek relief
within reasonable time which may be two years form the date of
demise of the Government servant and the fact should be
communicated to Government.
2. In the Government Order second, read above it was
ordered that dependents of deceased Government servants may be
considered for appointment even if they are 16 years of age for
appointment to a post included in the Last Grade Service in
relaxation of rules, subject to the condition that the service
rendered prior to attaining majority should not be counted till the
dependent attain majority.
3. The Government of India have in their office memo third
read above communicated their decision in regard to the minimum
age for entry into Government service which has been fixed keeping
in view the health recruitments, mental development etc., and
stated that if an employee died in harness while in service or is
retired on invalid pension and there is a ward below 18 years of age
and who alone is available for appointment he should apply for a
job as soon as he attains the age of 18 years and that persons
below the age 18 years should not be considered for appointment
on compassionate grounds.
12
4. The Government, after careful consideration, direct that
dependent of a Government employee who dies in harness or retires
on medical invalidation grounds, who is minor seeking
employment on compassionate ground should apply for
appointment only after attaining the age of 18 years subject to
the condition stipulated in item 13 in Government Memo first
read above, viz., the relief can be asked for within a reasonable
time which may be two years from the date of demise of the
Government servant but the spouse or the child of the deceased
Government servant should immediately apply for this relief.
5. The instructions issued in the G.O. second read above
should be deemed to have been modified to that extent.
(By order and in the name of the Governor of Andhra Pradesh)
G.R.NAIR
CHIEF SECRETARY TO GOVERNMENT.”
25. G.O.Ms.No.165 thus provided that the dependant who is a minor
seeking compassionate appointment should apply only after attaining the
age of 18 years, subject to the condition No.13 in Government Memo
dated 17.12.1979 i.e that the relief can be asked for within a reasonable
time which may be two years from the date of the demise of the
Government servant.
26. The Government Memo No.618/Ser-A/78-11 dated 17.12.1979, as
referred in G.O.Ms.No.165 under Item No.13 provides as under:-
Sl.No. Point Clarification
13. Whether a minor A minor dependent of the employee who dies in
dependent/child of a illness should not be considered for providing
deceased Government employment under this scheme, as there cannot be
employee can be any contractual obligation between the Government
considered for and the employee who is a minor. The intention of
appointment? the Government being to see that the family is not
exposed to destitution, the relief by taking somebody
for employment, should be immediate. Therefore, a
spouse or a child of the deceased Government
servant should immediately apply for this relief.
However, in case where due to the fact that the child
is a minor or he has not attained the educational
qualification, it should be possible for them to ask
for the relief within a reasonable time, which may be
two years from the date of demise of the Government
servant. In such a case, the fact should be
communicated to the Government.
27. Learned Government Pleader in response to the quarry a) above,
submitted that from conjoint reading of G.O.Ms.No.10, G.O.Ms.No.165
and the Government Memo dated 17.02.1979, it follows that the
13
petitioner must have attained the age of 16 years on the date of death
of her father though it is not so provided, specifically. His submission
is that the minor dependant has to apply for the relief of compassionate
appointment within a reasonable time which may be two years from the
date of demise of the Government servant. As minor dependant cannot
apply before 18 years he has to be of atleast 16 years on the date of
death of the employee. If the dependant applicant is below 16 years of
age on the date of death of the employee, he would not attain the age of
18 years within the reasonable period of two years of the date of death
as provided in Item No.13.
28. The above submission of the learned Government Pleader though
prima facie attractive, but on deep scrutiny is found without substance.
29. The aforesaid submission cannot be accepted, keeping in view the
object for which the compassionate appointment is made as also, the
intention behind issuance of G.O.Ms.No.10 dated 25.01.2018 read with
G.O.Ms.No.165 dated 20.03.1989 and Item no.13 of the Govt. Memo
dated 17.12.1979.
30. In Union of India and others vs V.R. Tripathi1, the Hon‟ble
Apex Court reiterated that the object underling a provision for grant of
compassionate employment is to enable the family of the deceased
employee to tide over sudden crisis resulting due to the death of the
bread winner which has left the family in penury and without any
means of livelihood, out of pure humanitarian consideration. The
appointment on compassionate grounds is an exception to the general
rule that recruitment to public servants should be on the basis of merit
and the same is carved out in the interest of justice to meet certain
contingencies.
1
(2019) 14 SCC 646
14
31. In V.R. Tripathi (supra), the Hon‟ble Apex Court further held that
while designing a policy of compassionate appointment, undoubtedly,
the State can prescribe the terms on which it can be granted, however,
it is not open to the State while making the scheme or rules, to lay
down a condition which is inconsistent with Article 14 of the
Constitution of India. It was emphasized that the salutary purpose
underlying the grant of compassionate appointment is to prevent
destitution and penury in the family of the deceased employee and it
requires that any stipulation or condition which is imposed must have
or bear a reasonable nexus to the object which is sought to be achieved.
32. It is apt to refer paragraphs 10 to 13 and 16 to 17 of V.R.
Tripathi (supra) as under:
“10. Certain basic principles in regard to the grant of
compassionate appointment are settled by the decisions of this Court. In
Director of Education (Secondary) v Pushpendra Kumar 2 this Court
while discussing the object of compassionate appointment observed thus:
“8. The object underlying a provision for grant of compassionate
employment is to enable the family of the deceased employee to
tide over the sudden crisis resulting due to death of the bread-
earner which has left the family in penury and without any means
of livelihood. Out of pure humanitarian consideration and having
regard to the fact that unless some source of livelihood is
provided, the family would not be able to make both ends meet, a
provision is made for giving gainful appointment to one of the
dependants of the deceased who may be eligible for such
appointment…”.
11. In SBI v. Raj Kumar3 this Court while discussing the claim over
compassionate appointment held as follows:
“8. It is now well settled that appointment on compassionate
grounds is not a source of recruitment. On the other hand it is an
exception to the general rule that recruitment to public services
should be on the basis of merit, by an open invitation providing
equal opportunity to all eligible persons to participate in the
selection process. The dependants of employees, who die in
harness, do not have any special claim or right to employment,
except by way of the concession that may be extended by the
employer under the rules or by a separate scheme, to enable the
family of the deceased to get over the sudden financial crisis. The
claim for compassionate appointment is therefore traceable only
to the scheme framed by the employer for such employment and
there is no right whatsoever outside such scheme. An
appointment under the scheme can be made only if the scheme is
in force and not after it is abolished/withdrawn. It follows
therefore that when a scheme is abolished, any pending
application seeking appointment under the scheme will also cease
to exist, unless saved. The mere fact that an application was2
(1998) 5 SCC 192
3
(2010) 11 SCC 661
15made when the scheme was in force, will not by itself create a
right in favour of the applicant.”
12. In V Sivamurthy v State of Andhra Pradesh 4 this Court
summarised the principles relating to compassionate appointment as
follows:
“18……. (a) Compassionate appointment based only on descent is
impermissible. Appointments in public service should be made
strictly on the basis of open invitation of applications and
comparative merit, having regard to Articles 14 and 16 of the
Constitution of India. Though no other mode of appointment is
permissible, appointments on compassionate grounds are a well-
recognised exception to the said general rule, carved out in the
interest of justice to meet certain contingencies…
(c) Compassionate appointment can neither be claimed, nor
be granted, unless the rules governing the service permit such
appointments. Such appointments shall be strictly in accordance
with the scheme governing such appointments and against
existing vacancies…” (Emphasis supplied)
13. The policy of compassionate appointment is premised on the
death of an employee while in harness. The death of an employee is liable
to render the family in a position of financial hardship and need.
Compassionate appointment is intended to alleviate the hardship that the
family of a deceased employee may face upon premature death while in
service. Compassionate appointment, in other words, is not founded
merely on parentage or descent, for public employment must be
consistent with equality of opportunity which Article 16 of the
Constitution guarantees. Hence, before a claim for compassionate
appointment is asserted by the family of a deceased employee or is
granted by the State, the employer must have rules or a scheme which
envisage such appointment. It is in that sense that it is a trite principle of
law that there is no right to compassionate appointment. Even where
there is a scheme of compassionate appointment, an application for
engagement can only be considered in accordance with and subject to
fulfilling the conditions of the rules or the scheme. The submission which
has been urged on behalf of the Union of India by the learned Additional
Solicitor General is premised on the basis that there is no right to
compassionate appointment. There can be no doubt about the principle
that there is no right as such to compassionate appointment but only an
entitlement, where a scheme or rules envisaging it exist, to be considered
in accordance with the provisions.”
“16. The issue essentially is whether it is open to an employer, who is
amenable to Part III of the Constitution to deny the benefit of
compassionate appointment which is available to other legitimate
children. Undoubtedly, while designing a policy of compassionate
appointment, the State can prescribe the terms on which it can be
granted. However, it is not open to the State, while making the
scheme or rules, to lay down a condition which is inconsistent
with Article 14 of the Constitution. The purpose of compassionate
appointment is to prevent destitution and penury in the family of a
deceased employee. The effect of the circular is that irrespective of the
destitution which a child born from a second marriage of a deceased
employee may face, compassionate appointment is to be refused unless
the second marriage was contracted with the permission of the
administration. Once Section 16 of the Hindu Marriage Act, 1955 regards
a child born from a marriage entered into while the earlier marriage is
subsisting to be legitimate, it would not be open to the State, consistent
with Article 14 to exclude such a child from seeking the benefit of
compassionate appointment. Such a condition of exclusion is arbitrary
and ultra vires.
17. Even if the narrow classification test is adopted, the circular of
the Railway Board creates two categories between one class of legitimate
children. Though the law has regarded a child born from a second4
(2008) 13 SCC 730
16marriage as legitimate, a child born from the first marriage of a deceased
employee is alone made entitled to the benefit of compassionate
appointment. The salutary purpose underlying the grant of
compassionate appointment, which is to prevent destitution and
penury in the family of a deceased employee requires that any
stipulation or condition which is imposed must have or bear a
reasonable nexus to the object which is sought to be achieved. The
learned Additional Solicitor General has urged that it is open to the State,
as part of its policy of discouraging bigamy to restrict the benefit of
compassionate appointment, only to the spouse and children of the first
marriage and to deny it to the spouse of a subsequent marriage and the
children. We are here concerned with the exclusion of children born from
a second marriage. By excluding a class of beneficiaries who have been
deemed legitimate by the operation of law, the condition imposed is
disproportionate to the object sought to be achieved. Having regard to the
purpose and object of a scheme of compassionate appointment, once the
law has treated such children as legitimate, it would be impermissible to
exclude them from being considered for compassionate appointment.
Children do not choose their parents. To deny compassionate
appointment though the law treats a child of a void marriage as
legitimate is deeply offensive to their dignity and is offensive to the
constitutional guarantee against discrimination.”
33. The G.O.Ms.No.165, dated 20.03.1989 was issued to ensure that
the family of the deceased employee is not exposed to destitute. Such
scheme was issued as a measure of social security to the family of the
deceased employee to give the relief by taking somebody for
employment. As the relief is to be immediate, the spouse or child of the
deceased should apply immediately. G.O.Ms.No.165 specifically
provided that the minor dependant should apply only after attaining the
age of 18 years. So a minor dependant can not apply before 18 years of
age and he can apply only after attaining the age of 18 years. However,
the condition No.13 of Govt. Memo dated 17.12.1979 provided that the
relief can be asked within a reasonable time, which may be two years
from the date of demise of the Government servant.
34. Condition in Item No.13 requires consideration keeping in view
the object of compassionate appointment and the language in which it
is worded. The court finds that the true intent of G.O.Ms.No.165 read
with Item No.13 is that the relief should be claimed within a „reasonable
time‟ after attaining the majority. The time period of two years from the
date of demise is only by way of illustration as would be clear from the
use of the word „may‟ in the expression „which may be two years‟. „May‟
17
ordinarily is not mandatory and therefore it cannot be said that on
expiry of two years from the date of demise of the employee, the minor
dependant cannot apply at all, on attaining the majority on the ground
that any period after two years from the date of demise of the employee
would not be a reasonable time.
35. What is a reasonable time is to be determined in the facts and
circumstances of each case, taking into account various factors,
including, as in the present case, imposition of the ban at the relevant
point of time which covered more than two years period from the date of
demise of the employee.
36. In Veerayee Ammal vs. Seeni Ammal5, the Hon‟ble Apex Court
held that the word „reasonable has in law, prima facie meaning of
reasonable in regard to those circumstances of which the person
concerned is called upon to act reasonably knows or ought to know as
to what was reasonable. It was further observed that it may be
unreasonable to give an exact definition of word „reasonable‟. It was
observed that reasonable time is to be so much time as is necessary,
under the circumstances to do conveniently what the contract or duty
requires should be done in a particular case.
37. Paragraph 13 of Veerayee Ammal (supra) is reproduced as
under:
“13. The word “reasonable” has in law prima facie meaning of
reasonable in regard to those circumstances of which the person
concerned is called upon to act reasonably knows or ought to know
as to what was reasonable. It may be unreasonable to give an exact
definition of the word “reasonable”. The reason varies in its
conclusion according to idiosyncrasy of the individual and the time
and circumstances in which he thinks. The dictionary meaning of
the “reasonable time” is to be so much time as is necessary, under
the circumstances, to do conveniently what the contract or duty
requires should be done in a particular case. In other words it5
(2002) 1 SCC 134
18means as soon as circumstances permit. In Law Lexicon it is
defined to mean:
“A reasonable time, looking at all the circumstances of the
case; a reasonable time under ordinary circumstances; as soon
as circumstance will permit; so much time as is necessary
under the circumstances, conveniently to do what the contract
requires should be done; some more protracted space than
‘directly’; such length of time as may fairly, and properly, and
reasonably be allowed or required, having regard to the nature
of the act or duty and to the attending circumstances; all these
convey more or less the same idea.”
38. In Joseph Severance and others vs Benny Mathew and
others6, the basic issue was whether the suit was filed within a
reasonable time, the Hon‟ble Apex Court in paragraphs 10 and 11, held
as under:
“10. As observed in Veerayee Ammal v. Seeni Ammal, [2002] 1 SCC
134, it is “looking at all the circumstances of the case; a “reasonable
time” under ordinary circumstances; as soon as circumstances will
permit; so much time as is necessary under the circumstances,
conveniently to do what the contract requires should be done; some
more protracted space than `directly’; such length of time as may fairly,
and properly, and reasonably be allowed or required, having regard to
the nature of the act or duty and to the attending circumstances; all
these convey more or less the same idea”.
11. According to Advanced law Lexicon by P. Ramanatha Aiyar 3rd
Edition, 2005 reasonable time means as follows:
“That is a reasonable time that preserves to each party the
rights and advantages he possesses and protects each party
from losses that he ought not to suffer.
“Reasonable Time” is defined to be so much time as is
necessary, under the circumstances, to do conveniently what
the contract or duty requires should be done in a particular
case.
If it is proper to attempt any definition of the words
“reasonable time”, as applied to completion of a contract, the
distinction given by Chief Baron Pollock may be suggested,
namely, that a “reasonable time” means as soon as
circumstances will permit.
In determining what is a reasonable time or an
unreasonable time, regard is to be had to the nature of the
instrument, the usage or trade or business, if any, with
respect to such instrument, and the fact of the particular
case.
The reasonable time which a passenger is entitled to
alighting from a train is such time as is usually required by
passengers in getting off and on the train in safety at the
particular station in question.
A reasonable time, looking at all the circumstances of the
case; a reasonable time under ordinary circumstances; as6
(2005) 7 SCC 667
19soon as circumstances will permit; so much time as is
necessary under the circumstances, conveniently to do what
the contract requires should be done; some more protracted
space than “directly” such length of time as may fairly, and
properly, and reasonably be allowed or required, having
regard to the nature of the act or duty and to the attending
circumstances; all these convey more or less the same idea.
Reasonable time always depends on the circumstances of
the case. (Kinney) It is unreasonable for a person who has
borrowed ornaments for use in a ceremony to detain them
after the ceremony has been completed and the owner has
demanded their return. (AIR 1930 Oudh 395).
The expression “reasonable time” means so much time as
is necessary under the circumstances to do conveniently what
the contract or duty requires should be done in a particular
case”.
39. In Azhar Sultana vs. B. Rajamani and others7, where also the
issue was, if the suit was filed within a reasonable time, the Hon‟ble
Apex Court held what would be a reasonable time would depend upon
the facts and circumstances of each case. No hard-and-fast law can be
laid down. It is apt to refer paragraphs 28 and 29 as under:
“28. Section 16(c) of the Specific Relief Act, 1963 postulates
continuous readiness and willingness on the part of the plaintiff. It is a
condition precedent for obtaining a relief of grant of specific
performance of contract. The court, keeping in view the fact that it
exercises a discretionary jurisdiction, would be entitled to take into
consideration as to whether the suit had been filed within a reasonable
time. What would be a reasonable time would, however, depend upon
the facts and circumstances of each case. No hard and fast law can be
laid down therefor. The conduct of the parties in this behalf would also
assume significance.
29. In Veerayee Ammal v. Seeni Ammal [(2002) 1 SCC 134] it was
observed :
“11. When, concededly, the time was not of the essence of
the contract, the appellant-plaintiff was required to
approach the court of law within a reasonable time. A
Constitution Bench of this Hon’ble Court in Chand Rani v.
Kamal Rani held that in case of sale of immovable property
there is no presumption as to time being of the essence of
the contract. Even if it is not of the essence of contract, the
court may infer that it is to be performed in a reasonable
time if the conditions are (i) from the express terms of the
contract; (ii) from the nature of the property; and (iii) from
the surrounding circumstances, for example, the object of
making the contract. For the purposes of granting relief,
the reasonable time has to be ascertained from all the
facts and circumstances of the case.”
It was furthermore observed (Veerayee Ammal Case):
“13. The word “reasonable” has in law prima facie meaning of
reasonable in regard to those circumstances of which the person
concerned is called upon to act reasonably knows or ought to know as7
(2009) 17 SCC 27
20to what was reasonable. It may be unreasonable to give an exact
definition of the word “reasonable”. The reason varies in its conclusion
according to idiosyncrasy of the individual and the time and
circumstances in which he thinks. The dictionary meaning of the
“reasonable time” is to be so much time as is necessary, under the
circumstances, to do conveniently what the contract or duty requires
should be done in a particular case. In other words it means, as soon as
circumstances permit. In P. Ramanatha Aiyar’s The Law Lexicon it is
defined to mean:
`A reasonable time, looking at all the circumstances of the case;
a reasonable time under ordinary circumstances; as soon
as circumstances will permit; so much time as is necessary under the
circumstances, conveniently to do what the contract requires should be
done; some more protracted space than `directly’; such length of time as
may fairly, and properly, and reasonably be allowed or required, having
regard to the nature of the act or duty and to the attending
circumstances; all these convey more or less the same idea.’ ”
40. In Chhedi Lal Yadav and others vs. Hari Kishore Yadav (dead)
through Legal Representatives and others8, the Hon‟ble Apex Court
held that the time must be reckoned reasonably, not only in order to
preserve the rights and advantages a party possesses, but equally to
protect each party from the losses he ought not to suffer.
41. Paragraph 10 of the Chhedi Lal Yadav (supra) same is
reproduced as under:
“10. In Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn. ‘reasonable
time’ is explained as follows:
That is a reasonable time that preserves to each party the rights and
advantages he possesses and protects each party from losses that he
ought not to suffer. Thus, time must be reckoned reasonably, not only
in order to preserve rights and advantages a party possesses, but equally
to protect each party from the losses he ought not to suffer. Thus
whether an action has been taken within a reasonable time must also be
viewed from the point of view of the party who might suffer losses.”
42. In view of the aforesaid pronouncements of Hon‟ble the Apex
Court, it is clear that the word „reasonable‟ is a relative word. It means
reasonable in regard to those circumstances of which the person
concerned is called upon to act. Reasonable time, therefore, is to be
determined by looking at all the significant circumstances. It is so
much time as is necessary under the circumstances to do conveniently
what the duty requires, having regard to the nature of the act or duty
and the attending circumstances. Reasonable time would always
depend on the circumstances of the case.
8
(2018) 12 SCC 527
21
43. „Reasonable time‟, as mentioned in Item No.13, of two years from
the demise of the employee, may be a reasonable time in a given
situation but it cannot be that such time of two years would always be a
reasonable time in all the situations, or that a time beyond such two
years, would always be not a reasonable time. A time, even beyond two
years from the date of demise of the employee may be a reasonable time
depending upon the given situation. Ultimately it is a question of fact to
be considered according to the different situations and keeping in view
the object underlying the grant of compassionate appointment, to
achieve such object to mitigate the hardship of the dependants of the
deceased employee.
44. In the present case, the situation is that there was a ban imposed
at the time the petitioner‟s father died on 07.06.2006 and such ban was
lifted in the year 2018, making the dependant of the deceased
employee who died while in service during the period w.e.f 24.10.2004
upto 05.10.2009, eligible, for grant of compassionate appointment with
the object to give the benefit of the compassionate appointment to them
even in the year 2018, though the employee died during the period
20.10.2004 to 05.10.2009 i.e even after 9 to 14 years of the death. It
would, therefore, be unreasonable to read the condition under Item
No.13 of the Govt. Memo dated 17.12.1979 with G.O.Ms.No.165 of
1989, literally and to apply to the facts of the present case. Reasonable
time is to be reckoned in order to preserve the right or advantage
conferred as held in Chhedi Lal Yadav (supra), which is conferred on
the dependant applicants vide G.O.Ms.No.10, dated 25.01.2018 and not
to make them to suffer.
45. The situation here is that during the ban period, even if a minor
dependant had attained the age of majority of 18 years within a period
of two years from the date of demise, his case could not have been
22
considered because the ban period, covered the period in Item No.13, i.e
two years from the date of demise. So such a condition cannot be
strictly applied in the facts of present case, being un- reasonable as also
not advancing the object with which the scheme of compassionate
appointment is framed and made applicable in the year 2018 after
lifting the ban. Such date or time period or in view thereof attaining the
age of atleast 16 years on the date of death of the employee as
submitted by learned Government Pleader has no nexus to the object
sought to be achieved.
46. The next submission of the learned Government Pleader on query
above, b) was that the petitioner‟s mother, widow of the deceased
employee cannot be given compassionate appointment as now she has
become overage. Such submission amounts to blowing hot and cold at
the same time inasmuch as when it comes to the widow, the relevant
date to consider her age becomes the date of consideration after lifting
of the ban on compassionate appointment and when it comes to giving
compassionate appointment to the petitioner daughter, the relevant
date to consider her age becomes the date of death of the father.
47. In Rajashan State Industrial Development and Investment
Corporation and another vs. Diamond Gem Development
Corporation Limited and another9, the Hon‟ble Apex Court held that
a party cannot be permitted to „blow hot-blow cold‟ or „approbate and
reprobate‟. Paragraphs 15 and 16 are reproduced as under:-
“15. A party cannot be permitted to “blow hot-blow cold”, “fast and
loose” or “approbate and reprobate”. Where one knowingly accepts
the benefits of a contract, or conveyance, or of an order, he is
estopped from denying the validity of, or the binding effect of such
contract, or conveyance, or order upon himself. This rule is applied
to ensure equity, however, it must not be applied in such a manner,
so as to violate the principles of, what is right and, of good
conscience. (Vide: Nagubai Ammal and Ors. v. B. Shama Rao and
Ors.: AIR 1956 SC 593; C.I.T. Madras v. Mr. P. Firm Muar: AIR
1965 SC 1216; Ramesh Chandra Sankla etc. v. Vikram Cement
etc.: AIR 2009 SC 713; Pradeep Oil Corporation v. Municipal
Corporation of Delhi and Anr.: AIR 2011 SC 1869; Cauvery Coffee9
(2013) 5 SCC 479
23Traders, Mangalore v. Hornor Resources (International) Co. Limited:
(2011) 10 SCC 420; and V. Chandrasekaran and Anr. v. The
Administrative Officer and Ors.
16. Thus, it is evident that the doctrine of election is based on the
rule of estoppel the principle that one cannot approbate and
reprobate is inherent in it. The doctrine of estoppel by election is
one among the species of estoppels in pais (or equitable estoppel),
which is a rule of equity. By this law, a person may be precluded,
by way of his actions, or conduct, or silence when it is his duty to
speak, from asserting a right which he would have otherwise had.”
48. Recently, in Union of India and others vs. N. Murugesan and
others10, the Hon‟ble Apex Court observed and held on the maxim of
„approbate and reprobate‟ as under in paragraphs 26 and 27:
“26. These phrases are borrowed from the Scott’s law. They would only
mean that no party can be allowed to accept and reject the same thing,
and thus one cannot blow hot and cold. The principle behind the
doctrine of election is inbuilt in the concept of approbate and reprobate.
Once again, it is a principle of equity coming under the contours of
common law. Therefore, he who knows that if he objects to an
instrument, he will not get the benefit he wants cannot be allowed to do
so while enjoying the fruits. One cannot take advantage of one part
while rejecting the rest. A person cannot be allowed to have the benefit
of an instrument while questioning the same. Such a party either has to
affirm or disaffirm the transaction. This principle has to be applied with
more vigour as a common law principle, if such a party actually enjoys
the one part fully and on near completion of the said enjoyment,
thereafter questions the other part. An element of fair play is inbuilt in
this principle. It is also a species of estoppel dealing with the conduct of
a party. We have already dealt with the provisions of the Contract Act
concerning the conduct of a party, and his presumption of knowledge
while confirming an offer through his acceptance unconditionally.
27. We would like to quote the following judgments for better
appreciation and understanding of the said principle:
27.1. Nagubai Ammal v. B. Shama Rao: 1956 SCR 451:
“23. But it is argued by Sri Krishnaswami Ayyangar that as the
proceedings in OS. No. 92 of 1938-39 are relied on as barring the plea
that the decree and sale in OS. No. 100 of 1919-20 are not collusive,
not on the ground of res judicata or estoppel but on the principle that a
person cannot both approbate and reprobate, it is immaterial that the
present Appellants were not parties thereto, and the decision in
Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd.
[(1921) 2 KB 608], and in particular, the observations of Scrutton, LJ,
at page 611 were quoted in support of this position. There, the facts
were that an agent delivered goods to the customer contrary to the
instructions of the principal, who thereafter filed a suit against the
purchaser for price of goods and obtained a decree. Not having obtained
satisfaction, the principal next filed a suit against the agent for damages
on the ground of negligence and breach of duty. It was held that such
an action was barred. The ground of the decision is that when on the
same facts, a person has the right to claim one of two reliefs and with
full knowledge he elects to claim one and obtains it, it is not open to
him thereafter to go back on his election and claim the alternative relief.
The principle was thus stated by Bankes, L.J.:
Having elected to treat the delivery to him as an authorised delivery
they cannot treat the same act as a misdelivery. To do so would be to
approbate and reprobate the same act”.
The observations of Scrutton, LJ on which the Appellants rely are as
follows:
10
(2022) 2 SCC 25
24
A Plaintiff is not permitted to ‘approbate and reprobate’. The phrase is
apparently borrowed from the Scotch law, where it is used to express
the principle embodied in our doctrine of election — namely, that no
party can accept and reject the same instrument: Ker v. Wauchope
[(1819) 1 Bli 1, 21]: Douglas-Menzies v. Umphelby [(1908) AC 224, 232].
The doctrine of election is not however confined to instruments. A
person cannot say at one time that a transaction is valid and thereby
obtain some advantage, to which he could only be entitled on the
footing that it is valid, and then turn round and say it is void for the
purpose of securing some other advantage. That is to approbate and
reprobate the transaction.
It is clear from the above observations that the maxim that a person
cannot ‘approbate and reprobate’ is only one application of the doctrine
of election, and that its operation must be confined to reliefs claimed in
respect of the same transaction and to the persons who are parties
thereto. The law is thus stated in Halsbury’s Laws of England, Vol. XIII,
p. 464, para 512:
On the principle that a person may not approbate and reprobate, a
species of estoppel has arisen which seems to be intermediate between
estoppel by record and estoppel in pais, and may conveniently be
referred to here. Thus a party cannot, after taking advantage under an
order (e.g. payment of costs), be heard to say that it is invalid and ask
to set it aside, or to set up to the prejudice of persons who have relied
upon it a case inconsistent with that upon which it was founded; nor
will he be allowed to go behind an order made in ignorance of the true
facts to the prejudice of third parties who have acted on it.
27.2.State of Punjab v. Dhanjit Singh Sandhu,: (2014) 15 SCC 144:
22. The doctrine of “approbate and reprobate” is only a species of
estoppel, it implies only to the conduct of parties. As in the case of
estoppel it cannot operate against the provisions of a statute. (Vide CIT
v. V. Mr. P. Firm Muar [CIT v. V. Mr. P. Firm Muar: AIR 1965 SC 1216]).
23. It is settled proposition of law that once an order has been passed, it
is complied with, accepted by the other party and derived the benefit
out of it, he cannot challenge it on any ground. (Vide Maharashtra
SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant
Regular Motor Service: AIR 1969 SC 329].) In R.N. Gosain v. Yashpal
Dhir [R.N. Gosain v. Yashpal Dhir,: (1992) 4 SCC 683] this Court has
observed as under: (SCC pp. 687-88, para 10)
10. Law does not permit a person to both approbate and reprobate. This
principle is based on the doctrine of election which postulates that no
party can accept and reject the same instrument and that ‘a person
cannot say at one time that a transaction is valid and thereby obtain
some advantage, to which he could only be entitled on the footing that it
is valid, and then turn round and say it is void for the purpose of
securing some other advantage’.
25. The Supreme Court in Rajasthan State Industrial Development and
Investment Corporation v. Diamond and Gem Development Corporation
Ltd. [Rajasthan State Industrial Development and Investment
Corporation v. Diamond and Gem Development Corporation Ltd.,
MANU/SC/0116/2013 : (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153],
made an observation that a party cannot be permitted to “blow hot and
cold”, “fast and loose” or “approbate and reprobate”. Where one
knowingly accepts the benefits of a contract or conveyance or an order,
is estopped to deny the validity or binding effect on him of such contract
or conveyance or order. This Rule is applied to do equity, however, it
must not be applied in a manner as to violate the principles of right and
good conscience.
26. It is evident that the doctrine of election is based on the Rule of
estoppel, the principle that one cannot approbate and reprobate is
inherent in it. The doctrine of estoppel by election is one among the
species of estoppel in pais (or equitable estoppel), which is a Rule of
equity. By this law, a person may be precluded, by way of his actions, or
conduct, or silence when he has to speak, from asserting a right which
he would have otherwise had.
27.3. Rajasthan State Industrial Development Investment
Corporation v. Diamond Gem Development Corporation Ltd.,: (2013)
5 SCC 470:
25
I. Approbate and reprobate
15. A party cannot be permitted to “blow hot-blow cold”, “fast and loose”
or “approbate and reprobate”. Where one knowingly accepts the benefits
of a contract, or conveyance, or of an order, he is estopped from denying
the validity of, or the binding effect of such contract, or conveyance, or
order upon himself. This Rule is applied to ensure equity, however, it
must not be applied in such a manner so as to violate the principles of
what is right and of good conscience. [Vide Nagubai Ammal v. B. Shama
Rao [AIR 1956 SC 593], CIT v. V. Mr. P. Firm Muar [ AIR 1965 SC
1216], Ramesh Chandra Sankla v. Vikram Cement [: (2008) 14 SCC 58 :
(2009) 1 SCC (LS) 706 : AIR 2009 SC 713], Pradeep Oil Corporation v.
MCD (2011) 5 SCC 270 : (2011) 2 SCC (Civ) 712 : AIR 2011 SC 1869],
Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd.
(2011) 10 SCC 420 : (2012) 3 SCC (Civ) 685] and V. Chandrasekaran v.
Administrative Officer : (2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136 : JT
(2012) 9 SC 260].
16. Thus, it is evident that the doctrine of election is based on the Rule
of estoppel–the principle that one cannot approbate and reprobate is
inherent in it. The doctrine of estoppel by election is one among the
species of estoppel in pais (or equitable estoppel), which is a Rule of
equity. By this law, a person may be precluded, by way of his actions, or
conduct, or silence when it is his duty to speak, from asserting a right
which he would have otherwise had.”
49. In view of the aforesaid, the submission of the learned
Government Pleader in substance to deny compassionate appointment
to both, the petitioner as also her mother cannot be accepted.
50. In Union of India vs. G. Ganayutham11, the Hon‟ble Apex Court
held that to judge the validity of any administrative order or statutory
discretion, normally the Wednesbury test is to be applied to find out if
the decision was illegal or suffered from procedural improprieties or was
one which no sensible decision-maker could, on the material before him
and within the framework of the law, have arrived at. The Court would
consider whether relevant matters had not been taken into account or
whether irrelevant matters had been taken into account or whether the
action was not bonafide. The Court would also consider whether the
decision was absurd or perverse. The Court would not however go into
the correctness of the choice made by the administrator amongst the
various alternatives open to him. Nor could the Court substitute its
decision to that of the administrator.
11
1997 (7) ScC 463
26
51. It is also apt to refer the case of Chairman, All India Railway
Recruitment Board vs. K. Shyam Kumar12, on the point, in which the
Hon‟ble Apex Court on „Wednesbury‟ and „proportionality‟ principles,
held as under in paragraphs 36 to 38:
“36. Wednesbury applies to a decision which is so reprehensible in its defiance
of logic or of accepted moral or ethical standards that no sensible person who had
applied his mind to the issue to be decided could have arrived at it. proportionality as
a legal test is capable of being more precise and fastidious than a reasonableness test
as well as requiring a more intrusive review of a decision made by a public authority
which requires the courts to `assess the balance or equation’ struck by the decision
maker. proportionality test in some jurisdictions is also described as the “least
injurious means” or “minimal impairment” test so as to safeguard fundamental rights
of citizens and to ensure a fair balance between individual rights and public interest.
Suffice to say that there has been an overlapping of all these tests in its content and
structure, it is difficult to compartmentalize or lay down a straight jacket formula and
to say that Wednesbury has met with its death knell is too tall a statement. Let us,
however, recognize the fact that the current trend seems to favour proportionality test
but Wednesbury has not met with its judicial burial and a state burial, with full
honours is surely not to happen in the near future.
37. Proportionality, requires the Court to judge whether action taken was really
needed as well as whether it was within the range of courses of action which could
reasonably be followed. Proportionality is more concerned with the aims and intention
of the decision-maker and whether the decision- maker has achieved more or less the
correct balance or equilibrium. Courts entrusted with the task of judicial review has to
examine whether decision taken by the authority is proportionate, i.e. well balanced
and harmonious, to this extent court may indulge in a merit review and if the court
finds that the decision is proportionate, it seldom interferes with the decision taken
and if it finds that the decision is disproportionate i.e. if the court feels that it is not
well balanced or harmonious and does not stand to reason it may tend to interfere.
38. Leyland and Anthony on Textbook on Administrative Law (5th edn. OUP, 2005) at
p.331 has amply put as follows:
“Proportionality works on the assumption that administrative action ought not
to go beyond what is necessary to achieve its desired results (in every day terms, that
you should not use a sledgehammer to crack a nut) and in contrast to irrationality is
often understood to bring the courts much closer to reviewing the merits of a
decision.”
39. Courts have to develop an indefeasible and principled approach to proportionality
till that is done there will always be an overlapping between the traditional grounds of
review and the principle of proportionality and the cases would continue to be decided
in the same manner whichever principle is adopted. Proportionality as the word
indicates has reference to variables or comparison, it enables the Court to apply the
principle with various degrees of intensity and offers a potentially deeper inquiry into
the reasons, projected by the decision maker.”
52. Recently in Mohd Mustafa vs. Union of India and others13, the
Hon‟ble Apex Court held that the power of judicial review is a basic
feature of the Constitution of India. It is for the executive to administer
law and the function of the judiciary is to ensure that the Government
carries out its duties in accordance with the provisions of the
Constitution.
12
2010 (6) SCC 614
13
(2022)1 SCC 294
27
53. It is apt to reproduce paragraphs 15 to 18 of Mohd Mustafa
(supra) as under:
“13. Judicial review may be defined as a Court’s power to review the
actions of other branches or levels of government; especially the
Court’s power to invalidate legislative and executive actions as being
unconstitutional. Power of judicial review is within the domain of
the judiciary to determine the legality of administrative action
and the validity of legislations and it aims to protect citizens
from abuse and misuse of power by any branch of the State. The
power of judicial review is a basic feature of the Constitution of
India4. Judicial review has certain inherent limitations. However, it
is suited more for adjudication of disputes other than for performing
administrative functions. It is for the executive to administer law and
the function of the judiciary is to ensure that the Government carries
out its duties in accordance with the provisions of the Constitution.
14. The grounds on which administrative action is subject to
judicial review are illegality, irrationality and procedural
impropriety. The following observations made by Lord Diplock in
Council of Civil Service Unions and others v. Minister for Civil
Service are apt:
“By „illegality‟ as a ground for judicial review I mean that the
decision-maker must understand correctly the law that regulates his
decision-making power and must give effect to it. Whether he has or
not is par excellence a justiciable question to be decided, in the event
of dispute, by those 3 Minerva Mills Ltd. v. Union of India (1980) 3
SCC 625 4 Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225
5 S.R. Bommai v. Union of India (1994) 3 SCC 1 6 [1985] AC 374
persons, the judges, by whom the judicial power of the state is
exercisable.
By „irrationality‟ I mean what can by now be succinctly referred to as
„Wednesbury unreasonableness‟. It applies to a decision which is so
outrageous in its defiance of logic or of accepted moral standards
that no sensible person who had applied his mind to the question to
be decided could have arrived at it. Whether a decision falls within
this category is a question that judges by their training and
experience should be well equipped to answer, or else there would be
something badly wrong with our judicial system. To justify the
Court‟s exercise of this role, resort I think is today no longer needed
to Viscount Radcliff‟s ingenious explanation in Edwards (Inspector of
Taxes) v. Bairstow, of irrationality as a ground for a court‟s reversal
of a decision by ascribing it to an inferred though unidentifiable
mistake of law by the decision makers. “Irrationality” by now can
stand on its own feet as an accepted ground on which a decision may
be attacked by judicial review.
I have described the third head as “procedural impropriety” rather
than failure to observe basic rules of natural justice or failure to act
with procedural fairness towards the person who will be affected by
the decision. This is because susceptibility to judicial review under
this head covers also failure by an administrative tribunal to observe
procedural rules that are expressly laid down in the legislative
instrument by which its jurisdiction is conferred, even where such
failure does not involve any denial of natural justice. But the instant
case is not concerned with the proceedings of an administrative
tribunal at all”.
15. The discretionary power vested in an administrative
authority is not absolute and unfettered. In Wednesbury, Lord
Greene was of the opinion that discretion must be exercised
reasonably. Explaining the concept of unreasonableness, Lord
Greene stated that a person entrusted with discretion must
28direct himself properly in law and that he must call his own
attention to the matter which he is bound to consider. He
observed that the authority must exclude from his consideration
matters which are irrelevant to the matter he is to consider.
Lord Greene concluded that if an authority does not obey
aforementioned rules, he may truly be said, and often is said, to
be acting unreasonably.
16. Conditions prompted by extraneous or irrelevant considerations
are unreasonable and liable to be set aside by Courts in exercise of
its power under judicial review 8. (See: 7 Associated Provincial
Picture Houses Ltd v. Wednesbury Corp. [1947] 2 All ER 680 8 Ram
Avtar Sharma v. State of Haryana (1985) 3 SCC 189 17 State of U.P.
v. Raja Ram Jaiswal 9, Sheonandan Paswan v. State of Bihar
Others10, Sant Raj v. O.P. Singla 11, Padfield v. Minister of
Agriculture12). A decision can be arrived at by an authority after
considering all relevant factors. If the discretionary power has
been exercised in disregard of relevant consideration, the Court
will normally hold the action bad in law14. Relevant, germane
and valid considerations cannot be ignored or overlooked by an
executive authority while taking a decision. It is trite law that
Courts in exercise of power under judicial review do not interfere
with selections made by expert bodies by reassessing comparative
merits of the candidates. Interference with selections is restricted to
decisions vitiated by bias, mala fides and contrary to statutory
provisions. (See: Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan16,
Badrinath v. State of T.N.17, National Institute of Mental Health and
Neuro Sciences v. Dr. K. Kalyana Raman18, Major General I. P. S
Dewan v. Union of 9 (1985) 3 SCC 131 10 (1983) 1 SCC 438 11
(1985) 2 SCC 349 12 [1968] 1 All ER 694 13 Sachidanand Pandey v.
State of WB, (1987) 2 SCC 295 14 H.W.R. Wade C.F. Forsyth in
the 10th Edition of Administrative Law (2009) 15 C.K. Thakker
Administrative Law, Second Edition page 801 16 (1990) 1 SCC 305
17 (2000) 8 SCC 395 18 1992 Supp (2) SCC 481,India19, Union
Public Service Commission v. Hiranyalal Dev20, M. V. Thimmaiah v.
UPSC 21 and UPSC v. Sathiyapriya22).”
54. When judged in the light of the aforesaid principles, the impugned
order cannot be legally sustained. The relevant factors i.e., the ban
imposed and its subsequent lifting in 2018 have not been taken into
consideration in correct perspective. The condition No.13 has been
applied mechanically, without considering that the emphasis in the
condition is on „reasonable time‟ and the time of two years from the date
of demise of the employee is only by way of illustration and in normal
circumstances. It also failed to consider that even the period of two
years as in the condition, fell during the ban period and as such, such a
condition could not have been taken into consideration to return the
proposal of petitioner‟s appointment on compassionate ground to
deprive her the benefits conferred on lifting of the ban in the year 2018.
In passing the impugned order, the relevant germane and fair
29
considerations have been over looked. The impugned order suffers from
the vice of irrationality as also illegality and deserves to be quashed.
55. The Hon‟ble Apex Court in Harikrishna Mandir Trust vs. State
of Maharashtra and others14, held that the High Courts exercising
their jurisdiction under Article 226 of the Constitution of India, not only
have the power to issue a Writ of Mandamus or in the nature of
Mandamus, but are duty bound to exercise such power, where the
Government or a public authority has failed to exercise or has wrongly
exercised discretion conferred upon it by a Statute, or a rule, or a policy
decision of the Government or has exercised such discretion malafide,
or on irrelevant consideration. In all such cases, the High Court must
issue a Writ of Mandamus and give directions to compel performance in
an appropriate and lawful manner of the discretion conferred upon the
Government or a public authority. The Hon‟ble Apex Court further held
that in appropriate cases, in order to prevent injustice to the parties,
the Court may itself pass an order or give directions which the
government or the public authorities should have passed, had it
properly and lawfully exercised its discretion.
56. Paragraphs 100 to 103 of Hari Krishna Mandir Trust (supra) are
reproduced as under:
“100. The High Courts exercising their jurisdiction Under Article
226 of the Constitution of India, not only have the power to issue a
Writ of Mandamus or in the nature of Mandamus, but are duty
bound to exercise such power, where the Government or a
public authority has failed to exercise or has wrongly exercised
discretion conferred upon it by a Statute, or a rule, or a policy
decision of the Government or has exercised such discretion
malafide, or on irrelevant consideration.
101. In all such cases, the High Court must issue a Writ of
Mandamus and give directions to compel performance in an
appropriate and lawful manner of the discretion conferred
upon the Government or a public authority.
102. In appropriate cases, in order to prevent injustice to the
parties, the Court may itself pass an order or give directions which14
(2020) 9 SCC 356
30the government or the public authorities should have passed, had
it properly and lawfully exercised its discretion. In Directors of
Settlements, Andhra Pradesh and Ors. v. M.R. Apparao and Anr.
MANU/SC/0219/2002 : (2002) 4 SCC 638. Pattanaik J. observed:
One of the conditions for exercising power Under Article 226 for
issuance of a mandamus is that the court must come to the
conclusion that the aggrieved person has a legal right, which
entitles him to any of the rights and that such right has been
infringed. In other words, existence of a legal right of a citizen and
performance of any corresponding legal duty by the State or any
public authority, could be enforced by issuance of a writ of
mandamus, “Mandamus” means a command. It differs form the
writs of prohibition or certiorari in its demand for some activity on
the part of the body or person to whom it is addressed. Mandamus
is a command issued to direct any person, corporation, inferior
courts or government, requiring him or them to do some particular
thing therein specified which appertains to his or their office and is
in the nature of a public duty. A mandamus is available against
any public authority including administrative and local bodies, and
it would lie to any person who is under a duty imposed by a statute
or by the common law to do a particular act. In order to obtain a
writ or order in the nature of mandamus, the applicant has to
satisfy that he has a legal right to the performance of a legal duty
by the party against whom the mandamus is sought and such right
must be subsisting on the date of the petition. The duty that may
be enjoined by mandamus may be one imposed by the
Constitution, a statute, common law or by Rules or orders having
the force of law.
103. The Court is duty bound to issue a writ of Mandamus for
enforcement of a public duty. There can be no doubt that an
important requisite for issue of Mandamus is that Mandamus lies
to enforce a legal duty. This duty must be shown to exist towards
the applicant. A statutory duty must exist before it can be enforced
through Mandamus. Unless a statutory duty or right can be read in
the provision, Mandamus cannot be issued to enforce the same.”
57. Under the scheme of compassionate appointment, the petitioner
had a legal right for consideration and the respondents were under
corresponding duty to consider her case reasonably, fairly and as per
the scheme, which they failed to perform.
58. The petitioner was appointed on 01.02.2019 and had also joined
but the proposal for approval was returned vide the impugned order on
the only ground that she was not 16 years but 14 years of age on the
date of demise of her father which is found to be unreasonable and
unsustainable. The petitioner is entitled for approval of her
appointment on the post of „Record Assistant‟ in the 6th respondent
institution from the date of her appointment with all consequential
benefits.
31
59. The writ petition is allowed. The proceedings vide
Rc.No.23/A2/2019, dated 07.03.2019 issued by the 3rd respondent are
hereby quashed. A writ of Mandamus is issued directing the
respondents to grant approval to the petitioner‟s appointment from the
date of her appointment on the post of „Record Assistant‟ in the 6th
respondent institution with all consequential benefits within a period of
one month from the date of production of copy of this judgment.
60. No order as to costs.
Consequently, the Miscellaneous Petitions, if any, shall also stand
closed.
_
RAVI NATH TILHARI, J
Date:28.07.2022,
Note:
L.R copy to be marked.
Issue CC in one week.
B/o.
Gk
32
HON’BLE SRI JUSTICE RAVI NATH TILHARI
1
WRIT PETITION No.12227 of 2021
28.07.2022
Gk
