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2012 DIGILAW 1640 (RAJ)

State of Rajasthan v. Kumari Urfeen Sabri

2012-07-26

BELA M.TRIVEDI, NARENDRA KUMAR JAIN-I

body2012
Hon'ble JAIN-I, J.—Heard the learned counsel for the parties. 2. Respondent Kumari Urfeen Sabri (hereinafter referred to as 'the petitioner) preferred a writ petition before the Single Bench challenging the order dated 22nd March, 2007 passed by the appellants (hereinafter referred to as 'the respondents) whereby the petitioner was refused compassionate appointment. The Single Bench allowed the writ petition vide its order dated 23rd May, 2011, set aside the order dated 22nd March, 2007 and remanded the matter to the respondents to decide the matter afresh within a period of three months. Being aggrieved with the directions of the Single Bench, the respondents have preferred this intra court appeal. 3. Submission of the learned counsel for the appellants is that Smt. Nazma died on 23rd February, 2000 while in service and at the relevant time the petitioner Kumari Urfeen Sabri was only 11 years old, since there was no provision for giving employment to minor, therefore, her case was not considered. Petitioner subsequently applied for compassionate appointment after attaining the age of majority. The application was dismissed vide order dated 22.3.2007 on the ground that husband of Smt. Nazma was already in employment. It is also submitted that even if Syed Zakir Hussain, who is in employment was not biological father of petitioner, since a period of 12 years has expired from the date of death of Smt. Nazma, therefore, in view of the judgment of Hon'ble Apex Court in case of Eastern Coalfields Limited vs. Anil Badyakar & Ors. (2009) 13 SCC,112 and State of J&K & Ors. vs. Sajad Ahmed Mir (2006) 5 SCC 766 , the directions of Single Bench are liable to be set aside. 4. Learned counsel for the respondent supported the impugned order of the Single Bench and relied upon the decision of Single Bench of this court in Parmeshwar Kumar Verma vs. State of Rajasthan & Ors. RLW 2005(4) Raj. 2868 and Syed Khadim Hussain vs. State of Bihar & Ors. 2006 SCC (L&S) 1681. 5. We have considered the submissions of the learned counsel for the parties and examined the order of the Single Bench. 6. RLW 2005(4) Raj. 2868 and Syed Khadim Hussain vs. State of Bihar & Ors. 2006 SCC (L&S) 1681. 5. We have considered the submissions of the learned counsel for the parties and examined the order of the Single Bench. 6. So far as the facts of the case are concerned the same are not in dispute that Smt. Nazma died on 23rd February, 2000 while in service, petitioner was 11 years old at the time of her death, she applied for compassionate appointment in 2007 and her application was rejected on 22nd March, 2007. 7. The Single Bench considered that father of the petitioner Shri Syed Zakir Hussain was not her biological father. Her mother late Smt. Nazma Sabri married him after taking divorce two years ago from her biological father Shri Jamaluddin Ajmal. Syed Zakir Hussain had already settled the matter with the petitioner to claim share in retiral benefits of the mother and the father. 8. In Parmeshwar Kumar Verma vs. State of Raj. & Ors. (supra), the Single Bench of this court considered the matter where the application was dismissed on the ground of delay and latches and matter was remanded for considering the application of the petitioner afresh. 9. In Syed Khadim Hussain vs. State of Bihar & Ors (supra) the Hon'be Apex Court while considering the facts and circumstances of that case, directed that in the peculiar facts and circumstances of the case we direct the respondents-authorities to consider the application of the appellant and give him appropriate appointment within the reasonable time. The Hon'ble Apex Court decided the said case in the peculiar facts and circumstances of the case and it is distinguishable and is not applicable to the facts and circumstances of the present case. 10. Hon'ble Apex Court in case of State of J&K & Ors. vs. Sajad Ahmed Mir (supra) 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. 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. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the 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 of the Constitution. Para 11 of the judgment is reproduced as under :- “11. We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought “compassion”, the Bench ought to have considered the larger issue as well and it is that such an 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. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the 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 of the Constitution.” 12. In Eastern Coalfields Limited vs. Anil Badyakar & Ors. (supra), the Hon'ble Supreme Court considered its number of earlier judgments on the point and held that compassionate appointment is not a vested right which can be exercised at any time in future. It cannot be claimed or offered after a lapse of time when crisis is over. In Eastern Coalfields Limited vs. Anil Badyakar & Ors. (supra), the Hon'ble Supreme Court considered its number of earlier judgments on the point and held that compassionate appointment is not a vested right which can be exercised at any time in future. It cannot be claimed or offered after a lapse of time when crisis is over. Para 7 to 15 and 20 to 22 are reproduced as under :- “7. So far as the question of nature and object of appointment on compassionate ground, it is relevant to take note of what is stated by this court in the case of Umesh Kumar Nagpal vs. State of Haryana (1994) 4 SCC 138 : “6.....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." 8. In Jagdish Prasad vs. State of Bihar (1996) 1 SCC 301 , it was observed that :- “3...The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family." 9. In MMTC Ltd. vs. Pramoda Dei (1997) 1 SCC 390, it is observed by the court :- "4....As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment." 10. In the case of S. Mohan vs. Government of T.N. (1998) 9 SCC 485 ,the court stated that :- "4....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." 11. This court has observed in Director of Education (Secondary) vs. Pushpendra Kumar (1998) 5 SCC 192 :- "8. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to 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 for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee. In Umesh Kumar Nagpal vs. State of Haryana this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that 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." 12. In the case of Sanjay Kumar vs. State of Bihar 2000) 7 SCC 192, the court has stated that :- "3...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 breadearner who had left the family in penury and without any means of livelihood." 13. In the case of Punjab National Bank vs. Ashwini Kumar Taneja (2004) 7 SCC 265 , it was observed by the court that:- "4......It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis." 14. In so far as delay in approaching the authorities for such appointment is considered by this court in the case of Union of India vs. Bhagwan Singh (1995) 6 SCC 476 , it was held as follows : "8. It is evident, that the facts in this case point out, that the plea for compassionate employment is not to enable the family to tide over the sudden crisis or distress which resulted as early as September 1972. At the time Ram Singh died on 12.9.1972 there were two major sons and the mother of the children who were apparently capable of meeting the needs in the family and so they did not apply for any job on compassionate grounds. For nearly 20 years, the family has pulled on, apparently without any difficulty. In this background, we are of the view that the Central Administrative Tribunal acted illegally and wholly without jurisdiction in directing the Authorities to consider the case of the respondent for appointment on compassionate grounds and to provide him with an appointment, if he is found suitable." 15. In the case of Haryana State Electricity Board vs. Naresh Tanwar (1996) 8 SCC 23 , it was stated that :- "9. In the case of Haryana State Electricity Board vs. Naresh Tanwar (1996) 8 SCC 23 , it was stated that :- "9. It has been indicated in the decision of Umesh Kumar Nagpal that compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. In the other decision of this Court in Jagdish Prasad case, it has been also indicated that the very object of appointment of dependent of deceased employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years." 20. 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. 21. 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-inlaw of the second daughter who is unemployed may request for appointment on compassionate grounds. The request so made was accepted by the Personal 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. 22. In our considered view, the decision of the employer was in consonance with Umesh Kumar Nagpal case and the same should not have been interfered with by the High Court. Accordingly, we allow this appeal and set aside the orders passed by the High Court. There will be no order as to costs.” 13. 22. In our considered view, the decision of the employer was in consonance with Umesh Kumar Nagpal case and the same should not have been interfered with by the High Court. Accordingly, we allow this appeal and set aside the orders passed by the High Court. There will be no order as to costs.” 13. Looking to the facts of the present case that Smt. Nazma died way back in the year 2000 while in service, the ratio laid down by the Apex Court in Eastern Coalfields Limited vs. Anil Badyakar and Ors. (supra) is fully applicable in the present case where it is held that compassionate appointment is not a vested right which can be exercised at any time in future. It cannot be claimed or offered after a lapse of time when crisis is over. In these circumstances, we are of the view that the directions given by Single Bench are not in conformity with the law laid down by Hon'ble Apex Court in State of J & K & Ors. vs. Sajad Ahmed Mir (supra) and Esatern Coalfields Limited vs. Anil Badyakar & Ors. (supra). 14. In view of the above discussion, we allow this appeal and set aside the impugned order of the Single Bench and dismiss the writ petition of the petitioner. Parties are directed to bear their own costs. The stay application is also dismissed.