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Jharkhand High Court · body

2010 DIGILAW 18 (JHR)

Birendra Ram v. state of Jharkhand

2010-01-05

D.N.PATEL

body2010
JUDGMENT 1. The present petition has been preferred for getting compassionate appointment, because of the death of the father of the present petitioner on 8th May, 1995. 2. It is submitted by the learned counsel for the petitioner that the father of the present petitioner was working with the respondents and has expired on 8th May, 1995. Thereafter, an application was preferred by the elder brother of the petitioner on 28th February, 1996, but, he was not given any employment. The elder brother of the petitioner died on 31st May, 1998 and, thereafter, the petitioner applied for compassionate appointment on 15th January, 2001, but, the petitioner is not given compassionate appointment and, therefore, the present writ petition has been preferred. 3. I have heard learned counsel appearing on behalf of the respondent-State, who has submitted that very purpose of the appointment on compassionate ground has been frustrated by passage of more than one and half decade. Father of the petitioner has expired on 8th May, 1995 and in the year, 2008 this writ petition has been preferred. Learned counsel for the respondents has also submitted that the purpose of compassionate appointment is to give a financial assistance to the legal heirs of the deceased, but, in the present facts, when fifteen years' period has lapsed, the petitioner has not legal right to be appointed on compassionate ground. She has relied upon the decisions, rendered by the Hon'ble Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana & ors. , as reported in (1994) 4 SCC page-138 as well as in the case of State of J& K & ors. v. Sajad Ahmed Mir, as reported in (2006) 5 SCC page 766, and submitted on the basis of the aforesaid two decisions that if several years have lapsed after the death of an employee, the legal heirs are not entitled for compassionate appointment. It is also submitted by the learned counsel for the respondents that the father of the petitioner expired on 8th May, 1995. Petitioner's elder brother applied on 28th February, 1996, who died on 31st May, 1998 and after several months, the petitioner applied on 15th January, 2001 and the present writ petition has been filed in the year, 2008. It is also submitted by the learned counsel for the respondents that the father of the petitioner expired on 8th May, 1995. Petitioner's elder brother applied on 28th February, 1996, who died on 31st May, 1998 and after several months, the petitioner applied on 15th January, 2001 and the present writ petition has been filed in the year, 2008. Thus, there is a negligent approach on the part of the petitioner and, therefore, because of the delay and laches also, this writ petition deserves to be dismissed. 4. Having heard learned counsel for both the sides and looking to the facts and circumstances of the present case, I see no reason to entertain this writ petition, mainly for the following facts and reasons: (i) It appears from the facts of the case that the father of the present petitioner expired on 8th May, 1995, who was working with the respondents; (ii) Thereafter, the elder brother of the petitioner applied for compassionate appointment on 28th February,1996. He also expired on 31st May, 1998, during pendency of his application; (iii) Thereafter, the present petitioner applied on 15th January, 2001 for compassionate appointment, but, thepetitioner was also not given the compassionate appointment and, thereafter, this writ petition has been filed in the year, 2008. Thus, by now more than one decade has already passed, after the death of the father of the present petitioner. There must be a separate and independent source of earning and, thus, the very purpose of compassionate appointment has been frustrated by passage of approximately 14 years. (iv) It has been held by the Hon'ble Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana & ors., as reported in (1994) 4 SCC page138, in paragraph no.6, as under: "6. For these very reasons, 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. For these very reasons, 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." (v) It has been further held by the Hon'ble Supreme Court in the case of State of J & K and ors. v. Sajad Ahmed Mir, as reported in (2006) 5 SCC page766, especially in paragraph nos. 12 to 17, as under: "12. In State of Haryana v. Rani Devi it was held that the claim of the applicant for appointment on compassionate ground is based on the premise that he was dependent on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution. However, such claim is considered reasonable as also allowable on the basis of sudden crisis occurring in the family of the employee who had served the State and died while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative instructions which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. 13. In LIC of India v. Asha Ramchandra Ambekar it was indicated that the High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. 14. In Umesh Kumar Nagpal v. State of Haryana it was ruled that public service appointment should be made strictly on the basis of open invitation of applications and on merits. The appointment on compassionate ground cannot be a source of recruitment. It is merely an exception to the requirement of law keeping in view the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases, the object is to enable the family to get over sudden financial crisis. The appointment on compassionate ground cannot be a source of recruitment. It is merely an exception to the requirement of law keeping in view the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases, the object is to enable the family to get over sudden financial crisis. Such appointments on compassionate ground, therefore, have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. This favourable treatment to the dependant of the deceased employee must have clear nexus with the object sought to be achieved thereby i.e. relief against destitution. At the same time, however, it should not be forgotten that as against the destitute family of the deceased, there are millions and 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 expectation, and the change in the status and affairs of the family engendered by the erstwhile employment, which are suddenly upturned. 15. In Sushma Gosain v. Union of India it was observed that in the claims of appointment on compassionate grounds, there should be no delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to the death of the breadwinner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. 16. Recently, in Commr. Of Public Instructions v. K.R.Vishwanath, one of us (Pasayat,J.) had an occasion to consider the above decisions and the principles laid down there have been reiterated. 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-a-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 the 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 the death of the employee. When the Division Bench decided the matter, more than fifteen years had passed from the date of the 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 the 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 in 1999. The Division Bench, in our view, hence ought not to have allowed the appeal." (Emphasis supplied) In view of the aforesaid decision, because of the lapses of several years after the death of the father of the petitioner, who has expired on 8th May, 1995, there is no legal vested right in the present petitioner to get compassionate appointment nor there is any breach of public duty by the respondents. 5. As a cumulative effect of the aforesaid facts and reasons and the judicial pronouncements, I find no reason to entertain this writ petition and, hence, the same is hereby dismissed.