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Madhya Pradesh High Court · body

2005 DIGILAW 742 (MP)

Riazuddin Khan v. State of M. P.

2005-07-21

A.K.SHRIVASTAVA

body2005
ORDER 1. This petition was originally filed before the State Administrative Tribunal at Jabalpur on 16.12.1999. However on account of abolition of the Tribunal this petition has been received by this Court for its adjudication. 2. By this petition the petitioner is challenging the validity of the impugned order Annexure A-10 dated 7.7.1998 by which the candidature of the petitioner to appoint him on compassionate basis has been rejected by Director, Health Services. 3. The contention of learned counsel is that the father of petitioner, namely, Abdul Gaffar Khan was an employee in the Health Department and he breathed his last on 3.8.1985. At that juncture the petitioner was minor and when he became major he submitted an application for his appointment on compassionate basis on 30.12.1997 (Annexure A-5). The application of petitioner was dealt and was rejected vide impugned order Annexure A-10 on the ground that one son of the deceased has already been given appointment and therefore the application of the petitioner cannot be allowed. 4. The contention of learned counsel for the petitioner is that his father died on 3.8.1985 and earlier to the death of his father, his elder brother, namely. Basheeruddin was given appointment on 7.6.1985 on ad hoc basis and therefore the application to provide appointment on compassionate basis cannot be decided and rejected on the ground that the elder brother was given appointment earlier to the death of his father as the cause of action did not accrue on 7.6.1985 when the appointment to his elder brother was given. On these premised submissions it has been contended by learned counsel for the petitioner that respondents may be directed to reconsider the application of the petitioner. 5. On the other hand. it has been contended by Shri Samdarshi Tiwari. learned Dy. Government Advocate that on ad hoc basis Basheeruddin who is the son of the deceased and the elder brother of the petitioner was given appointment on 7.6.1985. but the appointment was only on ad hoc basis. Since the father of the petitioner and Basheeruddin died on 3.8.1985, hence the decision was taken to give regular appointment on compassionate basis to Basheeruddin. In this context my attention has been drawn to Annexure R-I. It has also been put forth by learned Dy. but the appointment was only on ad hoc basis. Since the father of the petitioner and Basheeruddin died on 3.8.1985, hence the decision was taken to give regular appointment on compassionate basis to Basheeruddin. In this context my attention has been drawn to Annexure R-I. It has also been put forth by learned Dy. Government Advocate that since the father of the petitioner died on 3.8.1985 and application was submitted in the year 1997, therefore the same was not liable to be considered. 6. In reply it has been submitted by learned counsel for the petitioner that on bare perusal of Annexure R-l it indicates that the order regularizing the services of his elder brother Basheeruddin has been ordered on account of the recommendation of the departmental promotion committee (selection committee) but not on account of compassionate ground and therefore the cause of action still survives and the application of petitioner has been wrongly dismissed. On going through Annexure R-l which is a note sheet it is gathered that there is a note at the bottom mentioning the fact that the decision has been taken by the selection committee to give regular appointment to Basheeruddin s/o Late Abdul Gaffar Khan on the post of LDC. Thus there is merit in the contention of learned counsel for the petitioner that the impugned order (Annexure A-10) has been passed wrongly and the said order is based on wrong notion. 7. The next question for consideration is that whether the application of petitioner can still be considered. It is no more in dispute that Abdul Gaffar Khan died on 3.8.1985 and the application to obtain appointment on compassionate ground was submitted by the petitioner on 30.12.1997 (Annexure A-5), i.e.) after 12 years of the death of the father of the petitioner who was an employee. It be seen the object of appointment on compassionate basis is to relieve the heirs of the deceased from immediate hardship and distress on account of death of the employee. The time is a great factor and if the appointment is not given at the relevant point of time, the hardship and distress is vanished. It be seen the object of appointment on compassionate basis is to relieve the heirs of the deceased from immediate hardship and distress on account of death of the employee. The time is a great factor and if the appointment is not given at the relevant point of time, the hardship and distress is vanished. There is no merit in the submission of learned counsel for the petitioner that since on the date of the death of the deceased he was a minor and therefore at the relevant point of time the application to obtain compassionate appointment could not be given. On going through the application to appoint on compassionate basis, nowhere it is written that what was the age of the petitioner at the time of the death of his father and when he became major. There is no averment in this regard in the petition also. The Supreme Court in the case of S. Mohan v. Government of T.N. and another [ (1998) 9 SCC 485 ] in para 4 held as under: "4. Learned counsel for the appellant has strenuously urged that the appointment of the appellant on compassionate grounds was justified and that the appellant had not suppressed any fact at the time of seeking appointment on compassionate grounds. The question, however, is whether in the facts and circumstances set out, could the appointment of the appellant have been made on compassionate grounds after a lapse of 10 years from the date of the death of his mother. Secondly, whether the circumstances justify the appointment of the appellant on compassionate grounds. On the first question, this Court, in the case of Umesh Kumar Nagpal v. State of Haryana SCC at p.141 has observed that the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the Rules. The consideration for such employment is not a 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 the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. In the present case, at the time of the death of the mother, she was not the sole breadwinner of the family. In the present case, at the time of the death of the mother, she was not the sole breadwinner of the family. Two sons were already employed and the father was receiving a small pension. The appellant sought employment on compassionate grounds after a lapse of 10 years. It was, therefore, obvious that there was no immediate financial crisis in the family which would warrant any out of turn appointment of the appellant on compassionate grounds. The financial crisis, if any, caused by the death of the mother was 10 years prior to the application of the appellant. At the time of the death of his mother, the appellant was around 12 or 13 years of age and his two brothers were employed. Looking to all the circumstances, the Government had rightly refused to give him appointment. The fact that the appellant was continued in service on account of the interim orders passed during the pendency of the proceedings taken out by the appellant will not be of any help to the appellant since he was throughout aware that these were only interim orders which were subject to the outcome of the proceedings. We do not see any reason to set aside the order of the Tribunal. The appeal is, therefore, dismissed. There will however be no order as to costs." In the said case the compassionate appointment was given to the person after he became major but the Government refused to affirm the action of the Municipality and eventually the appointment given on compassionate basis was recalled. The apex Court in these circumstances held that the compassionate appointment was unwarranted and rectification thereof rightly refused by the Government and the termination order was upheld. In the case of Haryana State Electricity Board v. Naresh Tanwar and another [ (1996) 8 SCC 23 ], the apex Court held that compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. The very object of appointment of dependent of deceased employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such a consideration cannot he kept binding for years. 8. In the case of Sanjay Kumar v. State of Bihar and others [ (2000) 7 SCC 192 ] the apex Court again reiterated the same law and held that the delay in attaining the age of majority would not he a ground to give appointment on compassionate basis. 9. In the present case there is no averment of the petitioner that what was his age at the time of the death of his father and when he became major. Since admittedly the deceased employee died on 3.8.1985 and the application was submitted by the petitioner on 30.12.1997, the view of this Court is that the same cannot be allowed and the petitioner is not entitled for compassionate appointment. 10. Resultantly, this petition is found to be devoid of any substance and the same is hereby dismissed. No order as to costs.