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2004 DIGILAW 42 (GAU)

Reading Markhap v. State of Meghalaya

2004-01-27

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. This writ petition has been filed challenging the legality and validity of the order dated 15.1.2002 by which the services of the Petitioner was terminated on the ground that the proposal for employment of the Petitioner on compassionate ground was time barred. 2. The facts leading to the filing of the writ petition is that the father of the Petitioner while was working as Chowkidar under the Respondent died in harness on 6.10.1994. Prior to that he was on leave for a period of 22 days w.e.f. 15.9.94 to 5.10.94. By an order dated 6.12.1994, the Petitioner was allowed to officiate as Chowkidar until further order. Such appointment was made against the vacancy of his father. After rendering long eight (8) years of service, the impugned order dated 15.1.2002 was issued on the aforesaid ground terminating the services of the Petitioner. 3. I have heard Mr. S.P. Mahanta, learned Counsel for the Petitioner and also heard learned State counsel. 4. Mr. Mahanta submits that the Petitioner in fact was appointed considering the pre-matured death of his father way back in 1994. He further submits that as per the assurance given by the Respondent, his such appointment was on compassionate ground and was to be regularised in due course. The Petitioner submitted his application for regularisation of his appointment on compassionate ground. However, instead of regularisation of his appointment on compassionate ground, the Respondent issued the impugned order dated 15.1.2002 terminating his services on the ground that the proposal for his compassionate appointment was time barred. 5. Mr. N.D. Chullai, learned Govt. Advocate appearing on behalf of the State Respondents submits that the case of the Petitioner was time barred. Referring to the scheme of the compassionate appointment he submits that since the proper application for appointment on compassionate ground as contemplated under Clause 10 of the scheme was to be submitted within one year of the death of the deceased father and the Petitioner lodged his claim only in July, 1996, his case could not be considered being time barred. He further submits that compassionate appointment cannot be claimed as a matter of course and is always dependent on various factors. Referring to the certificate of the financial position of the family of the Petitioner, Mr. Chullai, learned Govt. He further submits that compassionate appointment cannot be claimed as a matter of course and is always dependent on various factors. Referring to the certificate of the financial position of the family of the Petitioner, Mr. Chullai, learned Govt. Advocate submits that the family of the Petitioner is financially sound and thus the Petitioner is not entitled to be considered for compassionate appointment. 6. I have heard the learned Counsel for the parties and considered their submissions along with the materials on record. The claim of the Petitioner has been rejected by the impugned order only on the ground that the case of the Petitioner is time barred. The impugned order does not show anything about the financial soundness of the family of the Petitioner. As regards the financial soundness of the family of the Petitioner the certificate in question (Clause 6 of the same) is quoted below: The applicant Shri Reding Markhap is the unmarried eldest son of the deceased Govt. servant. Lt. Tensing Warbah Chowkidar. He was a helpless mother and 5 school going brothers and sisters to look after the death of his father. The family is depending on a meagre income of Rs. 6000/- annually from cultivation and person of the deceased about Rs. 25,000/- annually. The family do not have any other source of income. 7. From the above, it is an admitted position that so far as the financial position of the family is concerned, same favours consideration of the case of the Petitioner on compassionate ground. That leads to the main question as to whether the claim of the Petitioner is time barred. The admitted position is that the Petitioner was appointed against the resultant vacancy of his father and such appointment was after the death of his father. Thus presumption can be drawn that the case of the Petitioner was considered to mitigate the hardship that had fallen on the family members of the deceased employee. The process, however, was to be initiated towards regularisation of such compassionate appointment and in fact the Petitioner submitted his due application in July, 1996. The Clause 10 of the scheme in question although prescribed limitation for preferring such claim, however, there cannot be a mechanical approach to such clause to defeat a just claim. A technical approach to Clause 10 of the scheme will naturally defeat the case of the Petitioner. The Clause 10 of the scheme in question although prescribed limitation for preferring such claim, however, there cannot be a mechanical approach to such clause to defeat a just claim. A technical approach to Clause 10 of the scheme will naturally defeat the case of the Petitioner. In the instant case, the Petitioner was appointed against the resultant vacancy of his deceased father and as per the averments made in the writ petition, the Petitioner continued in his service taking that to be an appointment on compassionate ground. Eventually he submitted his application in July, 1996 towards regularisation of such appointment on compassionate ground. The Respondents themselves kept the matter pending and eventually passed the impugned order on 15.1.2002 rejecting the claim of the Petitioner on the ground of being tune barred. No other reasons has been assigned towards rejection of the claim of the Petitioner. Learned Counsel appearing for the Respondents although has referred to certificate in question which is in respect of financial soundness of the family of the Petitioner, and thereby submitted that the family members of the Petitioner are well and thus his case is not within the purview of compassionate appointment, no such ground is available in the impugned order, rather the financial certificate, relevant portion of which has been extracted above supports the case of the Petitioner for compassionate appointment. 8. By now almost 10 years have elapsed since the appointment of the Petitioner. The continuation of the services of the Petitioner till the issuance of the impugned order dated 15.1.2002 is not in dispute. This Court while entertaining the writ petition, was inclined to pass the interim order on 30.1.2002 protecting the services of the Petitioner, while passing the interim order also, this Court noticed the prima facie infirmity in passing the impugned order. 9. Considering the above, the impugned order dated 15.1.2002 is hereby set aside and quashed. The case of the Petitioner will have to be considered as of 1994 and cannot be defeated on the ground as was sought to be done by the impugned order. The Respondent will bear in mind that the Petitioner was appointed against the resultant vacancy of his deceased father and by now he has put on about 10 years of service. The Respondent will bear in mind that the Petitioner was appointed against the resultant vacancy of his deceased father and by now he has put on about 10 years of service. The Respondent will also bear in mind the dependent family members of the deceased and the meagre income of the family as reflected in the certificate of financial position. After so many years of service it will be un-desirable and uncalled for to terminate the services of the Petitioner. His appointment made way back in 1994, deserves to be regularised more particularly in view of the fact that he was so appointed against resultant vacancy of the deceased father who died in harness and same necessarily require the Respondent to consider the case of the Petitioner for appointment on compassionate ground. The writ petition stands allowed. No order as to cost. Petition allowed.