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Rajasthan High Court · body

2007 DIGILAW 2151 (RAJ)

Balvinder Singh v. Managing Director, RSRTC

2007-11-05

DINESH MAHESHWARI

body2007
Judgment Dinesh Maheshwari, J.—This petition for writ has been preferred by the petitioner being aggrieved of denial of compassionate appointment by the respondents on the ground of delay in applying. 2. The petitioner has averred in the writ petition that his father was working with the respondents on the post of driver and expired while on duty on 25.05.1997 leaving behind the petitioner, his mother Smt.Sunder Kaur, and other children Sandeep Kaur and Vikram Singh; that his mother Smt. Sunder Kaur applied to the respondents for according compassionate appointment to the dependent of deceased employee within reasonable time; that the respondent No.2 by his communication dt. 01.03.2001 (Annex.1) addressed to Smt.Sunder Kaur sought certain more documents that were duly supplied by her; that the respondent No.2 again informed her by the letter dt. 12.08.2002 (Annex.2) that services of women were not found useful in plying of the vehicles and hence the Administration has decided to seek information (in the enclosed proforma) from the woman dependent if she desired employment for her son/daughter; that other communications were received by the petitioner’s mother on 18.08.2004 and 06.09.2004 (Annexure 3 & 4) whereby the respondents offered one time financial assistance; and that after receipt of those letters, the petitioner qualified Secondary Examination and being eligible for the post of driver, applied in the requisite form alongwith necessary documents. 3. The petitioner has stated the grievance in the manner that it was to the utter surprise of his mother that instead of considering the case for compassionate appointment, the respondents rejected the claim under their communication dt. 18.07.2006 (Annex.6) on the ground that the application for such compassionate appointment was made after about 3 years and 5 months. The petitioner has urged that the communication dt. 18.07.2006 (Annex.6) on the ground that the application for such compassionate appointment was made after about 3 years and 5 months. The petitioner has urged that the communication dt. 18.07.2006 is arbitrary and improper; that no hard and fast rule could be applied for according such compassionate appointment and each case has to be considered individually by the concerning authority; that petitioner’s father has left behind four dependents having no permanent source of income and it was just and proper to accord compassionate appointment for survival of the family; that claim of the petitioner could not have been rejected only on the basis of procedural lapses; that the petitioner is an eligible person and no member of the family is in Government service; and that once the case for compassionate appointment was taken into consideration, the same could not have been rejected on the ground of delay. 4. Notice for final disposal was issued in this matter on 12.02.2007 and the respondents have come out with the reply that father of the petitioner while working with the answering respondents expired on 25.05.1997 and after his death, the application seeking compassionate appointment was made only on 10.11.2000, after a delay of more than 3 years whereas such application was required to be submitted within a period of six months from the date of death of the employee and, therefore, due to delayed submission of the application, the case was not considered and the petitioner was informed accordingly by the letter dt. 30.10.2004 (Annex.R/1). The respondents in their para-wise reply, in relation to paragraph-3 of the writ petition have stated that the petitioner has averred about his mother applying for compassionate appointment but without stating the date of submission of such application; and that only the petitioner or his mother are responsible for not submitting the application well within prescribed time inasmuch as the application was submitted only on 10.11.2000, after a delay of more than three years. However, in relation to paragraphs 4 to 7 of the writ petition the respondents have stated that the same need no reply “being factual”. The respondents have reiterated in the subsequent paragraphs that no application was received from the petitioner’s side seeking appointment on compassionate ground within prescribed time and the application was submitted at a belated stage that was not considered and the petitioner was informed accordingly by the letter dt. 30.10.2004 (Annex.R/1). The respondents have reiterated in the subsequent paragraphs that no application was received from the petitioner’s side seeking appointment on compassionate ground within prescribed time and the application was submitted at a belated stage that was not considered and the petitioner was informed accordingly by the letter dt. 30.10.2004 (Annex.R/1). According to the respondents, the petitioner again submitted an application on 10.05.2006 for consideration of his case and in reply thereto, the petitioner was informed by the letter dt. 18.07.2006 (Annex.6) that his case was not considered as already informed. The respondents have contested the grounds stated in the writ petition essentially with the same submissions that application for compassionate appointment was not made within prescribed time of six months and thus was rejected by the competent authority and the petitioner was informed accordingly. It has also been asserted that the compassionate appointment is not a matter of right; that the very purpose of giving compassionate appointment is to assist the deceased’s family in the emergent situation to overcome the financial crisis caused by the death of the employee and in this case since the family was surviving without deceased for more than seven years, it cannot be said that the family is living in indigent circumstances; and if it were so, family would have approached the authorities well within time. Thus, according to the respondents, the petitioner is not entitled to any relief. Learned counsel appearing for the respondents has supported the stand taken in the reply with reference to the pronouncement of the Hon’ble Supreme Court in the case of State of J. & K. & Ors. vs. Sajad Ahmed Mir, 2007 (1) RLW 73. 5. Having perused the material placed on record and having given a thoughtful consideration to the matter, this Court is of opinion that in the present case the stance of the respondents, of denial of compassionate appointment on the ground of delay, is akin to dishonest a plea; and this writ petition deserves to be allowed with costs, particularly for the conduct of the respondents. 6. As noticed above, it has been the case of the respondents that the application for compassionate appointment was made belatedly on 10.11.2000 and thus was rejected on 30.11.2004 (Annex.R/1). 6. As noticed above, it has been the case of the respondents that the application for compassionate appointment was made belatedly on 10.11.2000 and thus was rejected on 30.11.2004 (Annex.R/1). However, the face of innocence put forward by the respondents being an artificial one is amply clear from their avoidance to state any reply to the averments as made in paragraphs 4 to 7 of the writ petition. The averments as taken in paragraphs 4 to 7 of the writ petition and their reply deserve to be read together, and are reproduced verbatim hereunder: Averments in paragraphs-4 to 7 Averments in reply to of the writ petition paragraphs-4 to 7 4. That the Respondent No.2 issued a letter dt. 01.03.2001 in the name of Smt. Sunder Kaur whereby, he sought some documents which were duly supplied by her. Photo copy of the letter dt. 01.03.2001 is submitted as Anx.1. 5. That the Respondent No.2 again informed the mother of the petitioner vide letter dt. 12.08.2002 by which he informed that the services of deceased widows are not useful for the post of driver thus, woman dependent can get apply to her son. This letter was also appended with a proforma. Photocopy of this letter dt. 12.08.2002 is submitted as Anx.2. 6. That after receipt of letter dt. 12.08.2002 an another letter dt. 18.08.2004 and 06.09.2004 were received by petitioner’s mother by which the Respondent Department offered one time financial assistance. Photo copies of the letters are submitted as Anx.3 & 4 respectfully. 7. That after receipt of these letters the petitioner attained the age of maturity and also qualified Secondary Examination, therefore, being eligible for the post of Driver he applied in requisite form along-with necessary documents. Photo copy of Secondary Mark sheet is submitted as Anx.5. 7. It is at once clear that the respondents could dare not deny the fact that the application for compassionate appointment as made by the wife of the deceased employee was not rejected on the ground of delay. On the contrary, in the first letter dt. 01.03.2001 (Annex.1) the respondents sought from the wife of the deceased employee the documents relating to educational qualification and the proof regarding date of birth. On the contrary, in the first letter dt. 01.03.2001 (Annex.1) the respondents sought from the wife of the deceased employee the documents relating to educational qualification and the proof regarding date of birth. It was suggested that lady applicant could state the option for the job of painting in technical branch where training shall also be imparted; and that she was required to submit necessary affidavit. Then, by the communication dt. 12.08.2002 (Annex.2) mother of the petitioner was informed that it was earlier decided to accord appointment to the dependents of the deceased employee as driver, conductor, and artisan Gr.III in workshop but it was found that on such posts, the services rendered by the women were not proving useful in plying of the vehicles and, therefore, option be sought from the lady dependent for according employment to her son/daughter. The letter dt. 12.08.2002 addressed to the mother of the petitioner reads thus: ßmijksDr fo"k;kUrZxr izkIr vkids izkFkZuk i= ds Øe esa ys[k gS fd fuxe e.My ds fu.kZ; la[;k 21@96 dh ikyuk esa e`rd deZpkjh ds vkfJrksa dks pkyd] ifjpkyd ,oa dk;ZÓkkykvksa esa vkfVZfÓk;u xzsM r`rh; ds in ij fu;qfä iznku djus dk izko/kku fd;k gqvk gSA bu inksa ij efgykvksa dh lsok;sa okgu lapkyu esa mi;ksx fl¼ ugha gks ik jgh gSA ftlls fuxe izÓkklu us fu.kZ; fy;k gS fd ;g efgyk vkfJr tks vius LFkku ij vius iq=@iqf=;ksa dks fuxe esa fu;kstu fnykuk pkgrh gks rks buls fuEukuqlkj tkudkjh@lwpuk izkIr dh tkosA vr% vki ;g lwpuk 15 fnol ds vUnj&vUnj fuEu gLrk{kjdÙkkZ dks miyC/k djkus dk Je djsaAÞ 8. Then, by the letters dt. 18.08.2004 and 06.09.2004 (Annexures 3 & 4) mother of the petitioner was asked to state her option for one time financial assistance in place of compassionate appointment. In the light of the communications aforesaid that remain undenied and undeniable, the proposition as stated by the respondents in their letter (Annex.R/1) of not according compassionate appointment for the application having been made after a delay of three years deserves to be rejected outright as being preposterous and rather mala fide. 9. In the light of the communications aforesaid that remain undenied and undeniable, the proposition as stated by the respondents in their letter (Annex.R/1) of not according compassionate appointment for the application having been made after a delay of three years deserves to be rejected outright as being preposterous and rather mala fide. 9. The stand taken by the respondents is not only unworthy of credence, it sounds rather strange that on one hand, the widow of the deceased employee was suggested right upto 06.09.2004 of active consideration of her application, was asked even to state the alternative option for appointment of any of her child, and was asked to state option for one time financial assistance also and then, suddenly, the respondents would come out with a proposition on 30.10.2004 that the application having been made belatedly cannot be considered. If at all such was the proposition available with the respondents that the application for compassionate appointment was required to be rejected for having been made after a delay of three years, there was no justification with them to have asked the widow of the deceased employee to supply further documents on 01.03.2001 and then to have asked for alternative option for employment for a child on 12.08.2002 and then to have asked for yet another option of one time financial assistance on 06.09.2004. This Court is clearly of the view that in the name of dealing with the matter for according compassionate appointment in place of an employee dying in harness even a private employer would not be thinking of teasing and harassing the family in distress; and it sounds rather unfortunate that an agency of the State, the State Road Transport Corporation, would make such an attempt with the hapless family of their deceased employee, as if holding out different baits in the name of compassionate appointment or assistance. 10. As noticed above, the facts stated in paragraphs 4 to 7 of the writ petition are obviously uncomfortable for the respondents and have, thus, been sought to be brushed aside with a cryptic suggestion that such averments call for no reply being factual. When such facts remain undenied and undeniable, it is clear and apparent that even if the application was made belatedly, the same was not rejected on the ground of delay; and, on the contrary, the proceedings thereupon went on with different requirements and different propositions. When such facts remain undenied and undeniable, it is clear and apparent that even if the application was made belatedly, the same was not rejected on the ground of delay; and, on the contrary, the proceedings thereupon went on with different requirements and different propositions. In this fact situation this Court is clearly of the view that, even if made belatedly, once the respondents have chosen not to reject the application at the outset, they cannot turn around and take a stance later that the application was required to be rejected only on the ground of delay. 11. From the communication dt. 12.08.2002 this much is certain and apparent that the respondents were willing to accord compassionate appointment to the family concerned; and at the relevant time only the mother of the petitioner had applied and she was suggested by the respondents that the services of women were not found suitable for their purpose and then information was sought if she would be interested in appointment of any of her child. It is noticed from the mark-sheet of the petitioner of Secondary School Examination-2006 (Annex.5) that his date of birth is 10.04.1987. Obviously, the petitioner was about 10 years of age at the time of demise of his father and was about 14 years of age when his mother made the application for compassionate appointment; and was about 15 years of age when the Corporation addressed its communication dt. 12.08.2002. It appears quite natural that the wife of the deceased employee, mother of the petitioner, was left in a quandary with such communications from the respondents for her children being younger in age. 12. Then, there is not even an indication on record that the deceased’s family is possessed of other means of subsistence and looking to the age of the petitioner, it appears reasonable to infer that the petitioner’s mother was not in a position to state a concrete reply to the communication dt. 12.08.2002. It is not in dispute that the request for compassionate appointment had been repeated on 10.07.2006 by making of application by the petitioner immediately after result of his Secondary Examination that was declared on 05.06.2006; and the petitioner was about 19 years of age at the relevant time. 12.08.2002. It is not in dispute that the request for compassionate appointment had been repeated on 10.07.2006 by making of application by the petitioner immediately after result of his Secondary Examination that was declared on 05.06.2006; and the petitioner was about 19 years of age at the relevant time. The present one does not appear to be a case where the distressed family deserves to be denied compassionate appointment only on the ground of delay; and on the contrary, even if there was initial delay in making of the application, in view of the undeniable communications dt. 01.03.2001 and 12.08.2002 (Annex.1 and Annex.2) such delay already stood condoned and could not have been adopted as the ground for denial of the application made for compassionate appointment. 13. It is true that the compassionate appointment being in the nature of an exception to the general rule of open recruitment cannot be operated in the manner that any undue advantage is extended at the cost of other eligible persons; and general rule is not departed except when there are compelling circumstances; and once it is proved that inspite of death of bread earner the family has survived and substantial period is over, the normal rule of regular appointments should not be permitted to be overtaken in the name of compassion. However, looking to the overall circumstances, the present one appears to be a case fit enough where an appropriate writ and specific directions deserve to be issued for consideration of the application for compassionate appointment on merits. 14. In Sajad Ahmed Mir’s case (supra), the Hon’ble Supreme Court did not approve the order passed by the Hon’ble Division Bench of the High Court of Jammu and Kashmir for according compassionate appointment to the son of the deceased employee who died on 06.03.1987 and the applicant (son of he deceased) applied for compassionate appointment only on 20.09.1991 and his case was rejected in the year 1996 whereas the writ petition was filed in the year 1999. The learned Single Judge rejected the writ petition but the Division Bench of Jammu and Kashmir High Court reversed the decision while holding the petitioner entitled to compassionate appointment; and it is but apparent that the Hon’ble Division Bench proceeded largely on sympathetic considerations. The learned Single Judge rejected the writ petition but the Division Bench of Jammu and Kashmir High Court reversed the decision while holding the petitioner entitled to compassionate appointment; and it is but apparent that the Hon’ble Division Bench proceeded largely on sympathetic considerations. The Hon’ble Supreme Court reminded of the law declared in various decisions that the High Courts and Tribunals cannot confer benediction impelled by sympathetic considerations and that appointment on compassionate ground is not a source of recruitment and is merely an exception keeping in view the fact about death of the employee while in service, leaving his family without any means of livelihood; and the object is to enable the family to get over sudden financial crisis. It has also been pointed out with reference to the decision of the Hon’ble Supreme Court in the case of Smt. Sushma Gosain & Ors. vs. Union of India and Ors., (1989) 4 SCC 468 that in claims of appointment on compassionate grounds, there should be no delay in appointment for the purpose being to mitigate the hardship. In Sajjad Ahmed Mir’s case, the Hon’ble Supreme Court has disapproved the proposition adopted by the Division Bench of Jammu and Kashmir High Court for several reasons and factors that could be noticed from the following observations and findings:- “(17) In the case on hand, the father of the applicant died in March 1987. The application was made by the applicant after four and half years in September 1991 which was rejected in March 1996. The writ petition was filed in June 1999 which was dismissed by the learned Single Judge in July 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. The said fact was indeed a relevant and material fact which went to show that the family survived in spite of death of the employee. Moreover, in our opinion, the learned Single Judge was also right in holding that though the order was passed in 1996, it was not challenged by the applicant immediately. He took chance of challenging the order in 1999 when there was inter-departmental communication 1999. The Division Bench, in our view, hence ought not to have allowed the appeal.” 15. Moreover, in our opinion, the learned Single Judge was also right in holding that though the order was passed in 1996, it was not challenged by the applicant immediately. He took chance of challenging the order in 1999 when there was inter-departmental communication 1999. The Division Bench, in our view, hence ought not to have allowed the appeal.” 15. The fact situation of the present matter makes out a case different for the fundamental reason that upto the year 2002, the respondents were dealing with the application made for compassionate appointment and proposed to accord appointment to a child of the deceased in place of his widow and such fact has not been denied by them. Then not such inordinate time period has elapsed to conclude with reasonable certainty that the family ought to have settled itself and need not be extended the help in the form of compassionate appointment by the respondents. There is nothing on record to rebut the submissions of the petitioner that the family is in penurious condition and is suffering hardship; and there is nothing on record to even remotely suggest that family is possessed of sufficient means and sources of income. This Court is of opinion that it would rather be a travesty of justice if the respondents are permitted to deny the application for compassionate appointment as made in this case only on the ground of delay that was never the ground of rejection in the first place. Such applications by their nature are of course required to be made at the earliest and within the time prescribed under the rules/regulations but at the same time and for their very nature, it cannot be said that delay in making the application cannot be condoned and cannot be deemed to have been condoned when the same has been dealt with on merits while asking for further particulars and stating different propositions as noticed above. 16. With reference to their communications (Annex.1 and Annex.2), this Court has no hesitation in concluding that the respondents had already decided to accord compassionate appointment in this matter; and further communications (Annex.3 and Annex.4) fortify the conclusion that the respondents were aware of the needs of the family. 16. With reference to their communications (Annex.1 and Annex.2), this Court has no hesitation in concluding that the respondents had already decided to accord compassionate appointment in this matter; and further communications (Annex.3 and Annex.4) fortify the conclusion that the respondents were aware of the needs of the family. Mere passage of time in shuttling of the matter by the respondents cannot be taken decisive in the present case and the ratio in Sajad Ahmed Mir’s case (supra) cannot be applied to the fact situation of the present case with mere reference to the period elapsed that is referable to the dealings of the respondents themselves. 17. The petition for writ, therefore, succeeds and is allowed; while the impugned communication dt. 18.07.2006 (Annex.6) stands quashed, the previous communication dt. 13.10.2004 referred therein also stands annulled; and the respondents are directed to consider the application(s) made by the mother of the petitioner and so also by the petitioner for according compassionate appointment in accordance with law and to take a decision on such application(s) objectively and keeping in view the observations made hereinabove within a period of two months from today. The petitioner shall also be entitled to costs of this petition quantified at Rs.2,200/-.