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2010 DIGILAW 431 (JHR)

Nandi Bala Kumari v. State of Jharkhand

2010-04-08

D.N.PATEL

body2010
JUDGMENT 1. Learned counsel for the petitioner submitted that neither the petitioner has been given compassion ate appointment by the respondents nor the respondents have paid her the family pension and, therefore, the present writ petition has been preferred. 2. Learned counsel for the petitioner submitted that the father of the petitioner has expired on 5th May, 1986 and at the relevant date, the age of the petitioner was six years and, therefore, the petitioner applied for compassionate appointment, only upon attaining the age of majority, but, the respondents are not appointing the petitioner on compassionate ground. The petitioner's mother has expired in the year, 2003 and, thereafter, the respondents have stopped the payment of family pension, as stated in paragraph no.11 of the writ petition and, therefore, let a suitable direction be given to the respondents for compassionate appointment as well as for payment of family pension to the petitioner. 3. I have heard learned counsel for the respondents, who has submitted that the father of the petitioner has expired on 5th May, 1986. More than a period of two decade having lapsed, the purpose of compassionate appointment is already over, as the petitioner has survived for approximately twenty three years after the death of her father. Learned counsel for the respondents has relied upon the decisions, rendered by the Hon'ble Supreme Court in the cases of State of U.P. V. Paras Nath, as reported in (1998)2 SCC page 412, Sanjay Kumar V. State of Bihar & anr., as reported in (2000)7 SCC page192, Santosh Kumar Dubey V. State of Uttar Pradesh & anr., as reported in (2009)6 SCC page481 and M/s Eastern Coalfields Ltd. V. Anil Badyakar & ors. , as reported in AIR 2009 SC page2534, and submitted that after a long lapse of time from the date of death of the employee, the surviving legal heir is not entitled for compassionate appointment. There cannot be a reservation of a seat for a minor, who has attained the age of majority after several years, as has been held by the Hon'ble Supreme Court in the case of Sanjay Kumar V. State of Bihar & anr., as reported in (2000)7 SCC page192, at paragraph no.3, and, therefore, this writ petition deserves to be dismissed. There cannot be a reservation of a seat for a minor, who has attained the age of majority after several years, as has been held by the Hon'ble Supreme Court in the case of Sanjay Kumar V. State of Bihar & anr., as reported in (2000)7 SCC page192, at paragraph no.3, and, therefore, this writ petition deserves to be dismissed. Learned counsel for the respondents further submitted that so far as pension is concerned, it is payable to a retired employee and after the death of the employee, family pension will be paid to the widow. In the facts of the present case, mother of the petitioner has also expired in the year, 2003 and at that time, the petitioner was more than 23 years of age and, therefore, this petitioner is not entitled for any pension amount and hence, this writ petition deserves to be dismissed. 4. In view of the aforesaid submissions, 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 5th May, 1986, who was working with the respondents. Petitioner's age was six years, as on the date of death of her father. (ii) The petitioner attained the age of majority, much later, in the year, 1999 and, thus, after several years, petitioner is claiming compassionate appointment, which is not allowed to be given, otherwise, the very purpose of compassionate appointment will be frustrated. Petitioner has survived for several years after the death of her father. (iii) It has been held by the Hon'ble Supreme Court in the case of State of U.P. V. Paras Nath, as reported in (1998)2 SCC page 412, at paragraph nos. 4, 5 and 6, as under Seventeen years after the death of his father, the respondent, on 8.1.1986, made an application for being appointed to the post of a Primary School Teacher under the said Rules. His application was rejected. He, thereafter, filed a writ petition before the High Court. This writ petition was allowed by the High Court and an appeal from the decision of the Single Judge of the High Court was also dismissed by the Division Bench of the High Court. Hence the State has filed the present appeal. 5. His application was rejected. He, thereafter, filed a writ petition before the High Court. This writ petition was allowed by the High Court and an appeal from the decision of the Single Judge of the High Court was also dismissed by the Division Bench of the High Court. Hence the State has filed the present appeal. 5. The purpose of providing employment to a dependent of a Government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased Government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case. 6. We may, in this connection, refer to only one judgment of this Court in the case of Union of India v. Bhagwan Singh. In this case, the application for appointment on similar compassionate grounds was made twenty years after the railway servant's death. This Court observed: "The reason for making compassionate appointment, which is exceptional, is to provide immediate financial assistance to the family of a Government servant who dies in harness, when there is no other earning member in the family." (Emphasis supplied) In view of the aforesaid decision, consideration for compassionate appointment cannot operate, when the application is made after a long period of time. (iv) It has been held by the Hon'ble Supreme Court in the case of Sanjay Kumar V. State of Bihar & ors., as reported in (2000)7 SCC page192, at paragraph nos. 2 and 3, as under: Learned Senior Counsel appearing on behalf of the petitioner has placed strong reliance on the decision of a learned Single Judge of the Patna High Court in Chandra Bhushan v. State of Bihar. Learned Senior Counsel points out that it was held in that case that an applicant's right cannot be defeated on the ground of delay caused by authorities which was beyond the control of the applicant. Learned Senior Counsel points out that it was held in that case that an applicant's right cannot be defeated on the ground of delay caused by authorities which was beyond the control of the applicant. Learned Senior Counsel further points out that instead of following the above judgment, the same learned Judge has now held on 2141997 that the application is time barred. Learned counsel has placed before us a judgment of this Court in Director of Education (Secondary) v. Pushpendra Kumar. He submits that, in this case, a direction was given to create supernumerary posts. 3. We are unable to agree with the submissions of the learned Senior Counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education v. Pushpendra Kumar. It is also significant to notice that on the date when the first application was made by the petitioner on 261988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief. (Emphasis supplied) In view of the aforesaid decision, though the petitioner is attaining the age of majority, later on, there cannot be a reservation of a vacancy, till such time as the petitioner becomes a major, after a number of years and, therefore, the petitioner is not entitled for compassionate appointment. (v) It has been held by the Hon'ble Supreme Court in the case of Santosh Kumar Dubey v. State of Uttar Pradesh & ors., as reported in (2009)6 SCC page481, especially at paragraph nos.11 and 12, as under: "11. The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constrains. 12. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service." (Emphasis supplied) In view of the aforesaid decision also, there is no legal vested right for compassionate appointment. After a long lapse of time, no compassionate appointment can be given. (vi) It has been held by the Hon'ble Supreme Court in the case of M/s Eastern Coalfields Ltd. v. Anil Badyakar & ors., as reported in A.I.R. 2009 SC page2534, especially at paragraph no.19, as under: "19. The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over. In the instant case the employee died in harness in the year 1981 and after a long squabble by the dependents of the deceased, they arrived at a settlement that the son-in-law of the second daughter who is unemployed may request for appointment on compassionate grounds. The request so made was accepted by the Personnel Manager of the Company subject to the approval of the Director of the Company. The Director (P), who is the competent authority for post facto approval, keeping in view the object and purpose of providing compassionate appointment has cancelled the provisional appointment on the ground that nearly after 12 years from the date of death of the employee such an appointment could not have been offered to the so called dependent of the deceased employee. In our considered view, the decision of the employer was in consonance with Umesh Kumar Nagpal's case and the same should not have been interfered with by the High Court." (Emphasis supplied) In view of the aforesaid decision, there is no legal vested right for compassionate appointment, especially when much longer period has lapsed from the date of death of the employee in harness. In the facts of the present case also, father of the petitioner has expired on 5th May, 1986. Thereafter, more than a period of two decade is over and hence, the petitioner is not entitled for compassionate appointment. 5. In view of the aforesaid facts, reasons and judicial pronouncements, the petitioner is not entitled for compassionate appointment. So far pension amount is concerned, the mother of the petitioner has expired in the year, 2003, as stated in paragraph no.11 of the memo of petition and it is submitted by the learned counsel for the petitioner that the age of the petitioner, as in the year, 2003, was more than twenty one years. She attained the age of majority in the year, 1999, as per paragraph no.10 of the writ petition. Thus, the petitioner is also not entitled for any family pension. In view of the aforesaid facts, this writ petition is hereby dismissed.