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2013 DIGILAW 299 (JHR)

Uzra Khatoon v. State of Jharkhand

2013-03-01

SHREE CHANDRASHEKHAR

body2013
JUDGMENT Shree Chandrashekhar, J. 1. The petitioner has moved this Court seeking appointment of her son on compassionate ground. 2. The husband of the petitioner while working as Primary School Teacher died on 19.11.1996. From the wedlock the petitioner was blessed with a daughter and a son. The husband of the petitioner contracted second marriage with one Sanju Ara with whom he had three sons and four daughters. The petitioner submitted an application on 11.03.1998 before the Deputy Commissioner, Hazaribagh, seeking appointment of her son namely, Minhaj Ahmad on compassionate ground. She submitted another application on 28.07.1998 to the District Superintendent of Education, Hazaribagh also. Again on 31.08.2002, the son of the petitioner submitted an application to the District Superintendent of Education, Hazaribagh for appointment on compassionate ground. Finding no response from the respondents the petitioner filed the present writ petition in the year 2002. 3. The Respondent No. 3, the District Education Officer, Hazaribagh, has filed a counter indicating that on 06.08.2002, an application by Modasar Akbar, who was born out of the wedlock from Sanju Ara, was also submitted. The second wife of Late Ali Akbar had produced a certificate from the Circle Officer, Barkagaon, wherein the name of the petitioner or her children were not mentioned as the family members of Late Ali Akbar. 4. Heard learned counsel for both the parties and perused the documents on record. Learned counsel for the petitioner has submitted that after the death of her husband, the second wife of Late Ali Akbar had thrown the petitioner and her children from the house. Her son is entitled for appointment on compassionate ground as they have no other means of livelihood. 5. Learned counsel for the respondents has resisted the writ petition and submitted that after lapse of so many years compassionate appointment cannot be given to the son of the petitioner. 6. In the case of “Umesh Kumar Nagpal Vs. State of Haryana and others”, reported in (1994) 4 SCC 138 , the Hon'ble Supreme Court while emphasising that the compassionate appointment cannot be claimed as a matter of course, has observed: “2. …..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. …..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 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 nonmanual 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.” 7. In the case of “Bhawani Prasad Sonkar Vs. Union of India and others.”, reported in (2011) 4 SCC 209 , the Hon'ble Supreme Court has held, 15. “Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. “Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.” The Hon'ble Supreme Court has in the said case indicated the factors which have to be kept in mind while considering the claim for employment on compassionate ground as under: 20. “(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme. (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be. (iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.” 8. (iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.” 8. The husband of the petitioner had contracted two marriages. There appears to be a dispute with respect to entitlement for appointment on compassionate ground. However, without going into the controversy I find that husband of the petitioner died in the year 1996 itself. Now, after 16 years it would be highly improper to order appointment on compassionate ground. 9. In the result, the writ petition is dismissed.