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2007 DIGILAW 334 (PAT)

Deepak Kumar Mishra v. Union Of India

2007-02-13

NAVIN SINHA

body2007
Judgment 1. Heard Learned Counsel for the petitioner and the learned Counsel for the respondents. 2. The father of the petitioner was deceased in harness on 23.8.1998. An application was made for appointment on compassionate grounds on 15.9.1998. The same was rejected by an order dated 17.5.2000. It is not in controversy that this order attained finality inter se and was not questioned by the petitioner before any court of law. The petitioner again represented his case when the respondents passed an order on 11.10.2001 that his case had been examined and rejected earlier. The petitioner did not fall in the category of destitute.as laid down by the Government of India guidelines. There was no vacancy available. Notwithstanding the same the matter was still pursued by the petitioner departmentally when orders came to be passed finally on 24.7.2002 rejecting the case of the petitioner reiterating that the mother of the petitioner was having income of Rs. 10,850/- per month against the indigency criteria of Rs. 1767.20 for a family of five members fixed by the Planning Commission. 3. The counter affidavit on behalf of the respondents adds in para 4 (iii) that other pensionary benefits received by the mother of the petitioner in details which is quoted below for ready reference:- (i) Amount of DCRG Rs. 2,67,729/- (ii) Amount of CGEGIS Rs. 39,782/- (iii) Amount of Leave Encashment Rs. 64,093/- (iv) Amount of GPF Rs. 2,15,796/- 4. The writ application has then been instituted in March 2004. 5. Learned Counsel for the petitioner sought to persuade this Court that the receipt of any retiral benefits to the family of the deceased was entirely a different question and could not be an impediment for consideration of the claim for compassionate appointment which was required to be considered de hores the same. However, he fairly concedes that the order of rejection dated 17.5.2000 has not been questioned by him. It is submitted that the Apex Court in the case reported in 2000(4) Supreme Today 602, had deprecated the denial of compassionate appointment for reasons of availability of family pension scheme. Relying upon the same a Bench of this Court in the case of Sanjeev Kumar Sinha, Vs. State Bank of India & Ors. It is submitted that the Apex Court in the case reported in 2000(4) Supreme Today 602, had deprecated the denial of compassionate appointment for reasons of availability of family pension scheme. Relying upon the same a Bench of this Court in the case of Sanjeev Kumar Sinha, Vs. State Bank of India & Ors. reported in 2001 (2) PLJR 219 , has held that merely because a substantial amount was paid to the family of the deceased by way of terminal benefits including provident fund, gratuity, leave encashment etc. that would be no ground to deny appointment on compassionate ground. In 2000(2) PLJR 778 (Smt. Nazma Bano & anr. Vs. Indian Lac Research Institute & Ors.) it has been held that an order rejecting application for appointment on compassionate ground, that the applicant had sound financial condition was not warranted in absence of a proper enquiry with regard to the same. 6. Learned Counsel for the respondents submitted that the petitioner accepted the order of rejection dated 17.5.2000 without demur. The present claim for compassionate appointment has been preferred four years thereafter. The order dated 24.7.2002 read with conjunction with the statements made in the counter affidavit clearly makes the petitioner ineligible as he does not fall in the category of destitute or penury for whom compassionate appointment is the only source of survival. 7. India is a Society in economic flux. In this transitional phase, the productive work force is far in excess of the employment available. This would be more relevant in the context of government employment. The law has to keep pace with this changing sociological scenario. 8. The law with regard to compassionate appointment has undergone sea change. This Court cannot but take help notice that the judgements relied upon by the petitioner are of the year 2000 or 2001, even the judgment of the Supreme Court as relied upon by the petitioner is of the year 2000. The Apex Court now has repeatedly held that an appointment on compassionate ground is not a source of recruitment. It is contrary to Articles 14 and 16 of the constitution of India which guarantees quality of opportunity. Each appointment on compassionate ground is made at the cost of shutting out another eligible application from consideration all together. 9. The Apex Court now has repeatedly held that an appointment on compassionate ground is not a source of recruitment. It is contrary to Articles 14 and 16 of the constitution of India which guarantees quality of opportunity. Each appointment on compassionate ground is made at the cost of shutting out another eligible application from consideration all together. 9. The changing dimensions of law with regard to commpassionate appointment are reflected in view of the judgment of the Supreme Court in the case of Punjab National Bank & Ors. Vs. Ashwini Taneja, reported in 2004(7) 265. While the High Court held that the retiral benefits received by the heirs of the deceased employee cannot be made a ground for rejecting the application for compassionate appointment, their Lordsahips held that compassionate appointment was not a source of recruitment but was an exception to appointment made on open Invitation of application on merits. Basic principle of compassionate appointment is to provide a means of livelihood to the family of the deceased faced with the Situation of financial crisis. Their Lordships held at Para 9 relying upon their own judgement in the case of General Manager (D & PB) and others Vs. Kunti Tiwary & another, 2004(7) SCC 271 that grant of retiral benefits to the heirs are to be taken into consideration while dealing with the prayer lor compassionate appointment. 10. In both the judgements it was held that the family receiving such retiral benefits cannot be said to be falling within the definition of the words "penury" and "without any means of livelihood". Similar is the view taken by the Supreme Court in the judgement reported in 2006(7) SCC 350 , Union Bank of India & others Vs. M.T. Latheesh, wherein the wife of the employee was given retiral benefits and had recurring monthly income from interest notwithstanding which an application for compassionate appointment was made by the son. While the High Court had directed the respondents therein to consider the case for compassionate appointment notwithstanding the availability of retiral and other benefits by heirs of the deceased employee, the Apex Court found the approach of the High Court to be erroneous keeping in view the objective of the compassionate appointment and that the same was not a source of recruitment but was an exception for appointment by open advertisement on merit. 11. 11. The facts of the present case bear marked similarity of facts with that which fell for consideration before the Supreme Court in the case of State of Jammu & Kashmir & Ors Vs. Sajad Ahmad Mir, (2006)5 SCC 766 . There also the claim for compassionate appointment having been made was rejected. The rejection remained unchallenged when the cause of action was sought to be based on certain communication which came to be received subsequently denying the claim for compassionate appointment. Like the present case, there also the claim for compassionate appointment was made after approximately four and half years after the death of the respondents father. The Supreme Court repelled the compassionate approach of the High Court. It held that compassionate appointment was an exception to the general rule and breached Article 14 of the Constitution. The initial order of rejection having not been challenged, no cause of action survived coupled with the passage of time. 12. In the present case, two salient aspects are to be noted. The deceased died in 1998, the application for compassionate appointment was rejected in the year 2000. It attained finality and was not questioned. Secondly the petitioner was not in position of penury nor was it a question of livelihood. He pursued the matter when the present order came to be passed assigning reasons to the satisfaction of the respondents that he was not eligible for the same. This Court is satisfied that the order is not arbitrary. The reasons are germane. It would not be appropriate exercise of jurisdiction to enter into the aforesaid findings for the reasons sought to be asserted on behalf of the petitioner. In the entirety of the matter, whether considered from the point of rejection of the claim in the year 2000 itself when the writ application has been preferred in 2004 or the grounds now set forth by the respondents, this Court finds if difficult to grant any relief to the petitioner keeping in mind that the claim is one of the compassionate appointment.