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1997 DIGILAW 476 (PAT)

Arun Kumar v. State of Bihar

1997-07-08

SUDHANSU JYOTI MUKHOPADHAYA

body1997
JUDGMENT S.J. Mukhopadhaya, J. The matter relates to compassionate appointment. The prayer of the petitioner for such appointment has been rejected by the District Compassionate Committee in their meeting dated 20.4.1992 (Vide Annexure-A). The sole ground of rejection is "delay". 2. The case of the petitioner lies in a narrow compass. His father Ram Naresh Sharma was a State Government employee posted as Headmaster, Primary School, Bhuakaul in the district of Samastipur. Said Ram Naresh Sharma died in harness on 2.4.1978. Petitioner filed application for compassionate appointment to the post of Assistant Teacher within time. The Director, Research, Training and Education of Government of Bihar by his letter no. 1315 dated 4.8.1978 selected the petitioner for Primary Teachers Training course. The petitioner was sent for training and was admitted against 3% reserved seats which were to be filled up from amongst heirs of deceased Government employee on compassionate ground. The petitioner thereafter carne out successful in the primary teachers training on 29.7.82 (1978-80 Sessions). However, no order of compassionate appointment was provided to him. It appears that the name of the petitioner was empanelled in the year 1984 in a routine manner for appointment to the post of Assistant Teacher Panel has been enclosed by the respondents as Annexure-B to the counter-affidavit. No preferance was given to the petitioner for compassionate appointment. Name of the petitioner being at Serial no. 79, in normal course he was not provided with appointment. After a number of reminders the case of the petitioner was placed before the District Compassionate Committee which in their metting dated 20.4.92 (vide Annexure-A) has rejected the claim of the petitioner on the ground of "delay". 3. While the counsel for the petitioner relied on some of the decisions of Courts to show that the application for compassionate appointment should not be rejected on the ground of delay, counsel for the State relied on certain other decisions in his support. 4. The matter relating to compassionate appointment fell for consideration from time to time before this Court, as well as, Supreme Court. The general view is to reject the claim of compassionate appointment after a long delay. However, in individual cases, Supreme Court, as well as, this Court allowed the prayer for compassionate appointment, even after a long delay, taking into note that there was no laches on the part of the claimant. The general view is to reject the claim of compassionate appointment after a long delay. However, in individual cases, Supreme Court, as well as, this Court allowed the prayer for compassionate appointment, even after a long delay, taking into note that there was no laches on the part of the claimant. Supreme Court in the case of Sushma Gosain [ AIR 1989 SC 1976 : 1991 (1) PLJR (SC) 1] allowed the appeal after about seven years of death of deceased employee. The Court held that delay in appointment and rejection of application in view of ban subsequently imposed on appointment is arbitrary. In Pinki Kumari case [ 1997 (1) PLJR 617 ] a Division Bench of this Court ordered to re-consider the case of appellant Pinki Kumari for compassionate appointment after about eight years taking into note that the appellant applied in time in terms with amended guideline made by Resolution dated 25.5.1989. This Court in Chandra Bhushan Singh case [ 1997(1) PLJR 626 ], while allowed application for compassionate appointment after ten years, held that the applicant's right cannot be defeated on the ground of delay caused by the authorities which was beyond the control of the applicant. The case of Anil Kumar Singh and other analogous cases fell for consideration before Division Bench of this Court [ 1993(1) PLJR 414 ]. Therein the minor son applied on attaining majority after the prescribed period of limitation. This Court held that the aforesaid act would frustrate the very object and purpose of policy decision. What is material for consideration is the time when the relief is to be granted to a family in distress and not to reserve a job for one of the dependants. In Prem Narayan and analogous cases [ 1995(1) PLJR 216 ], a Division Bench of this Court held that the compassionate appointment is to be made at the earliest, otherwise not only the object would be frustrated but the very reason or basis on which compassionate appointments have been upheld by Courts will disappear and expose to challenge as being violative of Article 16 of the Constitution of India. In Umesh Kumar Nagpal [ 1994(4) SCC 138 ], the Supreme Court held that the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment. In Umesh Kumar Nagpal [ 1994(4) SCC 138 ], the Supreme Court held that the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment. It further held that the grant of compassionate appointment after a lapse of reasonable period is impermissible. In the words of Supreme Court, the compassionate employment cannot be granted after a lapse of reasonable period which must be specified in the rules. The consideration for such employment is not vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of death of the sole breadwinner, the compassionate employment cannot be claimed and offer whatever the lapse of time and after the crisis is over. 5. From the aforesaid decisions of this Court and the Supreme Court, the matter can be summarised as follows :- (a) The compassionate appointment cannot be granted after a lapse of reasonable period which must be specified in the rules. (b) The compassionate appointment cannot be claimed after lapse of time. (c) The compassionate appointment cannot be offered after the crisis is over, and (d) The provision for compassionate appointment is necessarily to be made by the rules or by the executive instruction issued by the Government or the public authority concerned. 6. Thus, from the aforesaid factors, it is clear that while the compassionate appointment cannot be granted to a person who applies after the period of limitation, no compassionate appointment can be granted to a person after the crisis of the deceased family is over. Therefore, in all the cases, it is to be seen as to whether there is sudden financial crisis faced by the penurious family of the deceased employee or not, and if there is such sudden crisis, the crisis is over at the time the compassionate appointment is offered or not. This apart, while an application filed beyond the period of limitation prescribed under the guideline is fit to be rejected, but if application is made in time, the same cannot be rejected on the ground of delay till the authority comes to a conclusion that the sudden financial crisis of the family of the deceased employee is over or for some other valid reason. 7. 7. For the employees of the State Government, the State Government issued initial guideline by circular letter no. 12754 dated 12.7.1977. Therein while a limitation of two years from the date of deceased employee for filing application was laid down, no limitation for grant of appointment was laid down. Subsequently, the limitation period for filing such application was extended to five years by State Government's circular letter no. 6817 dated 25.5.89. However, no such time limit has been prescribed therein for providing the offer of appointment. 8. The State Government subsequently issued guideline by circular letter no. 13293 dated 5.10.1991. In the said circular, neither any limitation for filing application was prescribed, nor any limitation for issuance of offer of compassionate appointment was laid down therein. A Division Bench of this Court in Prem Narayan case [ 1995(1) PLJR 216 ], while deprecated such guideline, observed that it would be just and proper and obligatory upon the State to fix an outer limit keeping in view the nature of compassionate appointment and claims of others. 9. Presently circular dated 25.5.1989 is in vogue, the circular dated 5.10.1991 having held to be illegal. As stated above, five years period of limitation has been prescribed therein for application on compassionate appointment, which is to be counted from the date of death of deceased employee. Therefore, if any application is being made within the aforesaid stipulated period, cannot be rejected on the ground of delay, though the same can be rejected on the plea that the sudden financial crisis of the deceased employee is over. Similarly before offering any order of appointment, the authority is duty bound to consider as to whether there is any delay in offer or not. Such offer can be refused not only on the ground that the financial crisis of the family is over but also on other grounds including the ground that otherwise the deceased employee would have retired from service in normal course by the time of such offer. 10. In the present case, as the authorities have not considered the case of the petitioner in proper prospect and rejected the claim on the ground of delay, without taking into note the other factors, as mentioned above and as the petitioner applied within the stipulated period, I set aside the decision of Compassionate Committee dated 20.4.92 (Annexure-A) so far it relates to the petitioner. The case is remitted to the respondents for re-consideration of the case of the petitioner for compassionate appointment against any post. The petitioner will produce the relevant documents/certificate showing the present assets and earning of the dependants of the deceased employee, including the fact whether any other heir of the deceased employee is in service or not. The petitioner is to produce the aforesaid evidences/income certificate of the family along with a copy of this judgment. Thereafter the respondents will decide the claim within a period of two months from the date of receipt/production of such documents and this judgment. 11. Accordingly, the writ petition is allowed, with the aforementioned observations/ directions. There will be no order as to costs.