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2004 DIGILAW 233 (JK)

Sanjay Kumar v. State Of J. &K.

2004-08-06

Y.P.NARGOTRA

body2004
The petitioner through this writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, is seeking a direction to the respondents/State for giving compassionate appointment. The petitioner has claimed in the writ petition that his father Rattan Chand was holding the post of Peon on substantive basis and was posted in Govt. Degree College, Udhampur. He died while in harness on 1.8.1977 leaving behind his widow, Smt. Pushpa Devi, son Sanjay Kumar the petitioner and two daughters namely Soma Devi and Shanti Devi. The petitioner at the time of the death of his father was only three years old and because of the minority of the petitioner could not have been appointed on compassionate grounds after the death of his father. The petitioner as well as the other members of the deceased Rattan Chand was dependent upon the deceased Rattan Chand alone. The petitioner passed his 8th class examination in the year 1995.After attaining the majority and passing 8th class examination the petitioner applied/approached the respondent No. 2 for his appointment on compassionate grounds and submitted his application on 22.8.1995 but despite assurance his case was never considered. It has also been stated that after the death of the father of the petitioner the family, which comprises of four persons is living from hand to mouth and one of the sister of the petitioner has been got married in the year 1995, after borrowing money from his relatives and other friends so could not immediately file the writ petition. The petitioner claims that he is entitled to appointment on compassionate grounds in terms of rules which were inforce at the time of the death of his father and under the rules which are presently in force vide SRO No. 43 of 1994. 2. This petition has been filed on 25.1.1999 i.e. about 22 years after the death of the father of the petitioner for claiming appointment on compassionate grounds. The petition on being presented was allowed after being taken up for hearing on 1.2.1999 by Learned Single Judge of this Court. 3. Aggrieved by the judgment of the Learned Single Judge the State went in appeal before the Division Bench, the same being LPA No. 119/ 1999. The petition on being presented was allowed after being taken up for hearing on 1.2.1999 by Learned Single Judge of this Court. 3. Aggrieved by the judgment of the Learned Single Judge the State went in appeal before the Division Bench, the same being LPA No. 119/ 1999. The Learned Division Bench of this Court vide order dated 27.5.2003, set aside the judgment of the Learned Single Judge and remanded the matter back for fresh decision after giving an opportunity to the appellants/respondents to file objection/counter and after issuing proper notices to the parties. Accordingly notices were issued to the parties. By order dated 29th of October 2003 respondents-State was granted four weeks time for filing counter affidavit. By order dated 3rd of December 2003 time was extended by two weeks for filing counter. Counter was not filed, then again on 27th of January 2004 last opportunity for filing counter affidavit was given still the counter was not filed despite last opportunity. As the respondents-State did not file counter affidavit and so by order dated 8th of March 2004 case was ordered to listed for final hearing in due course so that the same may be disposed of by taking the averments made in the writ petition to be correct. Thereafter after being dismissed twice for non-appearance of the petitioner it came to be restored and taken up for final hearing without there being any counter affidavit of the respondents. The averments made in the writ petition are therefore deemed to be correct, as State has not contested the same. 4. Heard learned counsel for the parties. Mr.N.Goswami has contested the claims of the petitioner on the submission that the application of the petitioner is barred by time for having been filed after a period of about 18 years after the death of the father of the petitioner, therefore compassionate appointment of the petitioner cannot be ordered. 5. On the other hand contention of the learned counsel for the petitioner is that delay involved in the present petitioner for claiming compassionate appointment cannot come in his way as the same can be relaxed by the Government in view of the law laid down by this Court in case of Jai Lal v. Union of India and others reported in 2001 KLJ 623. The question raised for consideration therefore, is as to whether the application of the petitioner seeking compassionate appointment can be considered after being filed about 18 years from the death of his father and can the government be directed to make his appointment on compassionate grounds. In case reported as Umesh Kumar Nagpal v. State of Haryana reported in (1994) 4 SCC 138, the Apex Court has observed: " As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Govt. nor the Public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule, which is to be followed strictly in every case, there are some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception is in favor of the dependants of the employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crises. The object is not to give a member of such family a post muchless a post held by the deceased. What is further, mere death of employee in harness does not entitle his family to such source of livelihood. The Govt. or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provisions of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family." 6. Keeping in view the aforesaid object highlighted by the Honble Supreme Court the State Government framed the rules which are known as Jammu and Kashmir (Compassionae Appointment) Rules 1994 vide its SRO No. 43/1994. Keeping in view the aforesaid object highlighted by the Honble Supreme Court the State Government framed the rules which are known as Jammu and Kashmir (Compassionae Appointment) Rules 1994 vide its SRO No. 43/1994. Rule 3 of the said rules provides: "3. Notwithstanding anything contained in any rule or order for the time being in force regulating the procedure for recruitment in any service or posts under the Govt. an eligible family member of a person specified in rule 2 may be appointed against a vacancy in the lowest rank of a non-gazetted service having qualification above Matriculation or to a class IV post if the candidate has read upto matric. Provided that the applicant is eligible and qualified or acquires eligibility and qualification within period of six months from the death of the deceased person specified in rule 2." 7. So far as power of relaxation is concerned, rule 7 provides that the Govt. may relax the lower or upper age limit or education /technical qualification, as the case may be in deserving cases. All such cases shall be processed through General Administration Department in Coordination. In the background of the aforesaid rules, the matter is to be considered. These rules which came into force in the year 1994 were held to be prospective and not retrospective by this Court in case Jia Lal v. Union of India reported in 2001 KLJ 623. 8. The father of the petitioner had died in the year 1977 therefore the aforesaid rules have no application to the case of the petitioner for compassionate appointment. With regard to the compassionate appointment in rule 5 a provision was then existing in J&K Civil Services (Decentralisation and Recruitment) Rules 1956 which reads as follow:- "5. Recruitment and selection(1) All appointing authorities shall make appointments to the posts to be filled by direct recruitment except the following of posts strictly in accordance with the selection made by Recruitment Boards:- (i) Posts for which special treatment is expressly provided in any law for the time being in force: (ii) Deleted. (iii) Posts in Medical Education Department other than those borne on the Civil Secretariat Cadre. (iii) Posts in Medical Education Department other than those borne on the Civil Secretariat Cadre. (iv) Class IV posts; (v) Posts borne on work charge establishment and paid out of contingencies in all the Department; (vi) Posts of cook, Masalchies and similar other posts in Tawaza and other Departments as the General department may specify; and (vii) Privileges leave vacancies. Provided that if immediately before the commencement of the Jammu and Kashmir Civil Services (Decentralisation of and Recruitment to Non-gazetted Cadres)(First Amendment) Rules 1971, the Board have notified for selection any vacancy now excluded from their purview, selection thereto shall be made in such manner as the Government may be order specify in this behalf. (Viii) A vacancy occurring in a department due to the death of a Government employee in harness may be filled up in accordance with the prescribed rules subject to the condition that son/adopted son/daughter/adopted daughter/wife or dependent sister/brother of the deceased Government employee is provided employment in the Department on any vacancy in the non-gazetted cadre in the lowest rank or against any post for which he/she may be fully qualified; Provided that: (I) The appointing authority shall satisfy itself through personal enquiries or otherwise and after obtaining a report from the concerned Revenue Officer not below the rank of Assistant Commissioner that the grant of concession is justified having regard to the number of dependents left by the deceased Government servant, the assets and liabilities left by him, the income of the earning member(s) if any, and also his liabilities. (II) In most deserving cases, the concerned Head of the Department may recommend to the competent authority- (a) for relaxation of his/her age bar not beyond 40 years in the cases of upper age limit and by not more than four years in the case of lower age limit; (b) for relaxation of qualification in the case of posts for which minimum qualification prescribed is Matriculation or its equivalent subject to the condition that the beneficiary at the time of such appointment is not below the level of Middle Standard and that he/she acquires such qualification within a period of not more than two years falling which his/her services shall be terminated; (c) for grant of suitable scholarships not less than Rs. 100 per month in each case by the Education Department to the minor children left behind by the deceased Government employee till such time as they pass the Matriculation examination and thereafter be considered for appointment. (III) Benefit of compassionate appointment shall not be granted to more than one dependent of the deceased Government employee. (IV) In case of beneficiary being illiterate, the concerned Head of the Department may consider his/her case for employment on any post defined in Schedule II of J&K CSRS subject to the age limitation prescribed above. (V) Cases of those beneficiaries who are better qualified but are not in a position to find suitable posts in the Engineering and other technical Departments be considered for appointment against suitable posts in other Departments under the orders of the Chief Minister in co-ordination. (VI) No benefit will be admissible under this scheme in a case in which the monthly income reported by the Assistant Commissiner exceeds Rs. 1000 per month. Provided further that the case of compassionate appointment shall be finalised within a period of three months from the date of the death of Government employee under the orders of the Minister-in-charge." 9. The scheme envisaged under Rule 5 for making compassionate appointment is that a vacancy occurring in a department due to the death of a Govt. employee may be filled up by providing employment to any of his specified dependant on the satisfaction of the appointing authority that grant of concession is justified. If the person to be appointed is not eligible, in a most deserving case the concerned head of the department may recommend to the competent authority for relaxation of age bar by not more than 4 years in respect of lower age and not beyond 40 years of age in respect of upper age limit. He may also recommend for relaxation of qualification where minimum qualification required for the post is Matriculation and the beneficiary is Middle pass with the condition that he acquires such qualification within two years. However the case of compassionate appointment is required to be finalized within 3 months from the date of death of the employee. 10. The petitioner at the time of death of his father was not eligible to be appointed. However the case of compassionate appointment is required to be finalized within 3 months from the date of death of the employee. 10. The petitioner at the time of death of his father was not eligible to be appointed. The eligibility under the said rules could not be relaxed in his favour because of his being of three years of age only at the time of the death of his father. Even in the rules of 1994, the period for acquiring eligibility stands fixed at six months from the date of death of the Govt. employee. The question arising for determination in this case is whether petitioners application for compassionate appointment could be considered on the date he acquired the eligibility and for that matter is there any period of limitation prescribed. As regards the Rules of 1994 which are to some extent in parametria with the above quoted rule 5, the identical question arose in LPA (S) No. 481/2002 Romesh Singh v. State of J&K and Ors. decided on 30.12.2002 before the Division Bench of this Court. Learned Division Bench of this Court after referring to various rulings of the Supreme Court held as follows:- " Reading proviso to rule (3) of Rules which refers to acquiring of eligibility and qualification within a period of six months from the date of death of the deceased, the person will have to considered within that period. To say that within what period the person has to make an application to the appropriate authority for seeking appointment on compassionate ground, one has to read proviso to Rule 3. Reading the proviso it is very clear that even if the person is not eligible or not qualified, but within a period of six months, if he is qualified or he hs acquired eligibility, then in that case his case is required to be considered. Thus six months time is provided even for a person who was not eligible or qualified at the relevant time. If he fails to acquire the qualification or eligibility within six months, his case cannot be considered. Therefore, maximum period is provided six months. It is also required to be borne in mind that considering the fact that after the death of a person, for observing religious ceremonies and rituals, a person may take sometime. If he fails to acquire the qualification or eligibility within six months, his case cannot be considered. Therefore, maximum period is provided six months. It is also required to be borne in mind that considering the fact that after the death of a person, for observing religious ceremonies and rituals, a person may take sometime. It is equally possible that the person may not be out of shock immediately and, therefore, within reasonable period application is required to be made. Therefore, within a period of six months one must apply. Considering the language of the proviso one must apply within a period of six months, but not thereafter. We have also to bear in mind that if a person has died in harness then one would immediately approach the authority for seeking help." Thus according to the Learned Division Bench a person who is not eligible at the time of the death of his father can apply within a period of six months for seeking compassionate appointment after acquiring eligibility. 11. In the case of Smt. Sushma Gosain and Ors v. Union of India and Ors. reported in AIR 1989SC 1976, it was observed by the Apex Court that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness of limit. The above view was reiterated in Phoolwati(Smt) v.Union of India and ors., (1991 Supp (2) SCC 689) and Union of India and ors v. Bhagwan Singh, (1995 (6) SCC 476). 12. In the case of Director of Education (Secondary) and Anr v. Pushpendra Kumar and Ors reported in 1998 (5) SCC 192 it was observed by the Apex Court that in the matter of compassionate appointment there cannot be insistence for a particular post. 12. In the case of Director of Education (Secondary) and Anr v. Pushpendra Kumar and Ors reported in 1998 (5) SCC 192 it was observed by the Apex Court that in the matter of compassionate appointment there cannot be insistence for a particular post. Out of purely 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, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased-employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. 13. In State of U.P and ors v. Paras Nath reported in 1998 (2) SCC 412, it was held that the purpose of providing employment to the dependant of a Government servant dying-in-harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments. None of these considerations can operate when the application is made after a long period of time. In that case also the delay was 17 years. 14. Their Lordships of the Supreme Court after taking note of the rulings of the Supreme Court on the subject in the case State of Manipur v. Md. Rajaodin reported in 2003 AIR SCW 4339 held as follows:- "When case of the respondent is considered in the panorama of aforesaid legal principles, the inevitable conclusion is that he was not entitled for appointment. Even after 1984 scheme came into force, the application was filed after a long lapse of time. Rajaodin reported in 2003 AIR SCW 4339 held as follows:- "When case of the respondent is considered in the panorama of aforesaid legal principles, the inevitable conclusion is that he was not entitled for appointment. Even after 1984 scheme came into force, the application was filed after a long lapse of time. He, therefore, had no right much-less a legal right to ask for an appointment." In the aforesaid case the father of the respondent had died in harness on 19.7.1980.The writ petition was filed in the year 2001 seeking a direction to the concerned authority for making appointment under the Die-in-harness Scheme. The Learned Single Judge of the Munipur High Court had issued a direction and appeal of the State against the said direction stood dismissed and the matter was as such being considered by the Apex Court. 15. The appointment of the petitioner cannot be ordered to be made because of the delay of about of 18 years in making application for compassionate appointment. The rules relied upon by the learned counsel for the petitioner do not help him. The whole object of granting compassionate appointment being to enable the family to tied over the sudden crises it cannot be said that even after 27 years after the death of the deceased Rattan Chand his family has not been able to tied over the sudden crises. The petitioner in the circumstances of the case is found not entitled to compassionate appointment. 16. In view of the matter this writ petition is found to be without merit and is dismissed.