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Jharkhand High Court · body

2011 DIGILAW 165 (JHR)

Cicillia Besra v. State of Jharkhand

2011-03-09

J.C.S.RAWAT

body2011
Order This application. has been filed by the petitioner for the following reliefs; (a) Rule Nisi for issuance of an appropriate writ or in the nature of a writ of certiorari for quashing of the decision dated 5.7.05 taken by the District Compassionate Appointment Committee, Sahibganj for purposes of grant of compassionate appointment whereby at SI. No. 16 the claim of the petitioner's name Christopher Hasdak for grant of appointment on compassionate ground on account of death of late Muktar Hasdak on 9.8.92 while he was employed as clerk in S.S. High School, Borio was rejected; (b) Rule Nisi for issuance of an appropriate writ or in the nature of a writ of certiorari for quashing of the decision taken by the District Compassionate Appointment Committee meeting Sahibganj held on 16.10.06 under the Chairmanship of Deputy Commissioner, Sahibganj whereby at SI. No.7, the claim of the petitioner's son namely Christopher Hasdak for grant of appointment on compassionate ground on account of death of late Muktar Hasdak on 9.8.92 while he was employed as Clerk in S.S. High School, Borio, Sahibganj has been rejected on the ground that the District Compassionate Appointment Committee has already declared his claim as time barred on 5.7.2005; (c) Rule Nisi for issuance of an appropriate writ or in the nature of a writ of Mandamus directing and commanding upon the concerned respondents to grant employment to the petitioner's son namely Christopher Hasdak on compassionate ground on account of death of late Muktar Hasdak on 9.8.92 while he was employed as clerk/in S.S. High School, Borio as petitioner's son is the only surviving son of late Muktar Hasdak and he is lawfully and legally entitled to get employment on compassionate ground due to the reasons mentioned above. 2. The petitioner's husband was in a clerical job in the Government School, Borio and he died in harness on 9.8.1992. There was a dispute regarding the post retiral benefit amongst the family members of the petitioner. It is alleged that in the year 1992, the son of the petitioner was aged about 11 at the time of the death of the deceased. The petitioner filed an application on 17.11.2003 for seeking employment of her son. Thereafter, the said application was considered by the respondent authorities and the same was rejected on the ground that the same is time barred. 3. The petitioner filed an application on 17.11.2003 for seeking employment of her son. Thereafter, the said application was considered by the respondent authorities and the same was rejected on the ground that the same is time barred. 3. The respondent authorities have filed a counter affidavit stating therein that the rule provides that the application must be submitted within a period of five years but the said application was time barred, hence the application was rejected by the District Compassionate Appointment Committee, Sahibganj. 4. I have heard the learned counsel for the parties and perused the 'records. 5. It is admitted to both the parties that the husband of the petitioner died in harness in the year 1992 while he had been working in Government School, Borio and the application was submitted on 17.11.2003 for seeking employment to the son of the deceased by the present petitioner. The age of the son of the petitioner was 11 years on 9.8.1992 and he would have attained the age of majority in the year 1999. The petitioner even after four years, could not file application for seeking employment of her son under the scheme of "died in harness" and the family survived for a period of 11 years after the death of the deceased. 6. It is pertinent to mention here that the appointment in public services on compassionate ground has been carved out as an exception in the interest of justice to meet certain contingencies. As a rule, appointments in the public services should be made strictly on the basis of open invitation of application and merit and no other mode of appointment nor any other consideration is permissible. The compassionate appointment is made 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 dependents 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. it is well settled proposition of law that the appointment of compassionate ground has to be given in accordance with the relevant rules and guidelines that have been framed by the authority concerned and no person can claim for compassionate ground in disregard of such rules or regulations. 7. The Hon'ble Apex Court in the Case of Umesh Kumar Nagpal vs. State of Haryana and Ors. reported in 1994 (4) SCC 138 , has held in paragraph 2 as under; "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 dependents of an employee dying in harness and leaving his family in penury and without any means of 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 dependents 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 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 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 or 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 dependant 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." 8. In the case of State of Jammu and Kashmir and Ors. vs. Sajad Ahmad Mir reported in 2006(5) SCC 766 , the Hon'ble Apex Court has held that the compassionate appointment is an exception to the general rule normally, an employment in the 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. 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 from except where compelling circumstances demand, such as, death of the sole breadwinner and livelihood of the family suffering because of setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say "goodbye" to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 to the Constitution. 9. Keeping in view the above facts, the family has survived eleven years and I find that the petitioner's son is not entitled to get the benefit under the said Rule. The application itself was filed belatedly and if there would have been any urgency and family would have suffered financially, there would have been any financial crunch over the family. The family would have come forward to get the appointment under the scheme of "died in harness" Rule. This fact itself shows that the family has survived and the substantial period is over and the petition is liable to be dismissed. 10. In view of the above, I do not find any merit in this writ application. Accordingly, this writ application is dismissed. No order as to costs.