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2006 DIGILAW 607 (CAL)

GITA NANDI v. UNION BANK OF INDIA

2006-09-19

TAPEN SEN

body2006
Tapen Sen, J. ( 1 ) HEARD the parties. ( 2 ) IT is evident that the petitioner had come to this Court in W. P. No. 3102 (W) of 2005. Pursuant to the order passed therein on 28. 2. 05, the respondents have considered the case of the petitioner and have passed an order on 26. 4. 2005 which has been communicated vide letter as contained in Annexure P8 appended to writ petition. Upon a perusal of the impugned order, it is evident that the petitioner's husband died on 17. 4. 2001. It is also evident that the family of the deceased receives a monthly pension of Rs. 2,159/ -. ( 3 ) MR. Ghosh, appearing for the respondents, states that now the monthly pension is Rs. 2,672/ -. ( 4 ) IN a judgement of the Hon'ble Supreme Court of India in the case of umesh Kumar Nagpal vs State of Haryana, reported in 1994 (4) SCC 138 their Lordships have held as follows: "2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. 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 Governments 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 interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means 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, a 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 crisis. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government of 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 provision 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. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. , relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment, which are suddenly upturned. 3. Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible. " [sic] ( 5 ) THEN in a judgment of the Hon'ble Supreme Court of India, delivered in the case of Haryana State Electricity Board vs. Naresh Tanwar and Anr. That is legally impermissible. " [sic] ( 5 ) THEN in a judgment of the Hon'ble Supreme Court of India, delivered in the case of Haryana State Electricity Board vs. Naresh Tanwar and Anr. , reported in 1996 (8) SCC 23 , Their Lordships, following the judgment of Umesh kumar Nagpal vs. State of Haryana, reported in 1994 (4) SCC 138 , have held that compassionate appointment cannot be granted after a long lapse of a reasonable period and that the very "purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem suffered by members of the family of the deceased employee. Taking note of yet another judgment rendered by the apex Court passed in the case of Jagdish Prasad vs. State of Bihar, reported in 1996 (1) SCC 301 , Their Lordships have observed that the very object of compassionate appointment is to relieve unexpected immediate hardship and distress caused to the family by the sudden demise of the earning member of the family. ( 6 ) THE aforementioned judgment of the Hon'ble Apex Court in the case of Naresh Tamoar (supra), was delivered while considering an Order of the punjab and Haryana High Court which had directed that compassionate appointment be given to Naresh Tanwar. Being aggrieved with the aforementioned direction, the Haryana State Electricity Board moved up to the Apex Court and, after considering the judgments delivered in the cases of Umesh Kumar Nagpal and Jagdish Prasad, referred to above, Their lordships approved the view that the consideration for compassionate appointment was not a vested right which could be exercised at any point of time in the future. The object of compassionate appointment is to enable the family to get over the immediate financial crisis which it faces upon the time of death of its sole bread winner. As such, compassionate employment cannot be claimed and offered after whatever the lapse of time and after the crisis is over. ( 7 ) FURTHERMORE in Punjab National Bank and Ors. vs. Ashwini Kumar taneja, reported in 2004 (7) SCC 26, similar view has been taken and therefore no relief can be granted to the petitioner. ( 8 ) SIMILAR view has again been repeated by the Apex Court in para 11 of the case of State of J and Kand Ors. vs. Ashwini Kumar taneja, reported in 2004 (7) SCC 26, similar view has been taken and therefore no relief can be granted to the petitioner. ( 8 ) SIMILAR view has again been repeated by the Apex Court in para 11 of the case of State of J and Kand Ors. vs. Sajad Ahmed Mir, reported in 2006 AIR scw 3708 were Their Lordships have observed as follows: "11. We may also observe that when the Division Bench of the High court was considering the case of the applicant holding that he had sought 'compassion', the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the setback. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the constitution. " ( 9 ) IN view of the aforesaid judgements, no relief can be granted to the petitioner. The writ petition is accordingly dismissed but, in the facts and circumstances of this case, there shall be no order as to cost. Writ application dismissed.