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Jharkhand High Court · body

2013 DIGILAW 388 (JHR)

Harendra Narayan Verma v. State of Jharkhand

2013-03-15

D.N.PATEL

body2013
ORDER 1. This review application has been preferred by the original respondents in W.P. (S) No. 5100 of 2011. 2. It is submitted by learned counsel for the State that the present opposite party in review application is the original petitioner in the writ petition, who had preferred W.P. (S) No. 5100 of 2011 for getting compassionate appointment because of death of his mother and this Court has passed an order dated 21.9.2011 that the original petitioner in the writ petition is not insisted for compassionate appointment as a Teacher and he is ready and willing to join for Class-III post employee. 3. It is also submitted by learned counsel for the State that there is Government circular dated 5.10.1991 issued by the Personnel, Administrative Reforms and Rajbhasa Department, State of Bihar, which is at Annexure-2 to the review application that if husband and wife both are in Government service and if any one of them expired and if another spouse is still serving in the Government, then no compassionate appointment shall be given. Learned counsel for the State further submitted that the mother of the opposite party (original petitioner in the writ petition) expired on 10.5.2010 and as on that date, the father of the opposite party was working as the Government employee and he retired on 31.8.2010. The present opposite party preferred an application for compassionate appointment on 22.9.2010. The recommendation was made, which is dated 30.12.2010 to 28.2.2011 but the said recommendation was rejected on 28.6.2011. The recommendation was in favour of the present opposite party but it was not accepted. Looking to the circular issued by the Government, the compassionate appointment was denied on 28.6.2011. Thus, it is submitted by learned counsel for the State that when the mother of the present opposite party expired his father was serving in the Government as a Teacher and, therefore he is not entitled to compassionate appointment. Looking to the circular issued by the Government, the compassionate appointment was denied on 28.6.2011. Thus, it is submitted by learned counsel for the State that when the mother of the present opposite party expired his father was serving in the Government as a Teacher and, therefore he is not entitled to compassionate appointment. It is also submitted by learned counsel for the State that cut off date for compassionate appointment is the date of death of mother of the opposite party (original petitioner in the writ petition) and not the date of application preferred by him for compassionate appointment nor it can be the date of recommendation and therefore, the order passed by this Court dated 21.9.2011 in W.P. (S) No. 5100 of 2011 may be recalled and the contempt application filed by the petitioner may be dismissed by this Court. 4. Learned counsel for the opposite party (original petitioner in the writ petition) submitted that the petitioner had preferred W.P. (S) No. 5100 of 2011. Initially, the petitioner was offered Class-III post, but the petitioner insisted for appointment as a Teacher only and, therefore the writ petition was preferred. The petitioner was seeking appointment because of death of his mother and now the petitioner is ready for any Class-III post, instead of appointment exactly on the post of Teacher. Learned counsel for the opposite party (original petitioner in the writ petition) also submitted that in fact the petitioner was already recommended on 30.12.2010 and on 28.2.2011 for Class-III post. All the facts were considered by the present petitioner. At the relevant time no facts were concealed by the original petitioner and, therefore the order passed by this Court dated 21.9.2011 in W.P. (S) No. 5100 of 2011 may not be recalled. 5. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, it appears that the mother of the present opposite party (original petitioner) expired on 10.5.2010. At that time, father of the present opposite party (original petitioner) serving as a Teacher and he retired on 31.8.2010. The petitioner has applied for compassionate appointment because of death of his mother. The application was preferred on 21.9.2011. Thus, it appears that as on date of death of mother .of the opposite party, father was alive and he was serving with the Government as a Teacher. The petitioner has applied for compassionate appointment because of death of his mother. The application was preferred on 21.9.2011. Thus, it appears that as on date of death of mother .of the opposite party, father was alive and he was serving with the Government as a Teacher. Looking to the circular which is annexed at Annexure-2 of the review application which is issued by the Personnel, Administrative Reforms and, Rajbhasa Department. State of Bihar dated 5.10.1991 it appears that if husband and wife both are in Government service and if anyone of them expired benefit of compassionate appointment shall not been given to the legal heir. This aspect of the matter was not highlighted in the argument of W.P. (S) No. 5100 of 2011. 6. In view of the aforesaid circular, the present opposite party (original petitioner) is not entitled to the compassionate appointment because his father was serving in the Government as on date of death of his mother. 7. Learned counsel for the opposite party (original petitioner) submitted that the original Petitioner has applied for the compassionate appointment on 22.9.2010 and as on that date, his father was in the service, but, he retired on 31.8.2010 and the recommendation was made in favour of the original petitioner on 30.12.2010 to 28.2.2011 and, therefore, the original petitioner should be appointed as Class-III post employee. This, contention is not accepted by this Court mainly for the reason that the date of application of the original petitioner is not seen at all as a cut off date. The original petitioner' is seeking compassionate appointment because of death of his mother and, therefore, cut off date of original petitioner is the date of death of his mother, which is dated 10.5.2010 and as per the aforesaid circular, which is at Annexure-2, if the father of the petitioner is serving with the Government as on date of death of the mother of the original petitioner, the petitioner is not entitled to the compassionate appointment. 8. It has been held by the Hon'ble Supreme Court in the case of Bhawani Prasad Sonkar vs. Union of India, reported in (2011) 4 SCC 209 , especially in paragraph 15, which reads as under:– "15. 8. It has been held by the Hon'ble Supreme Court in the case of Bhawani Prasad Sonkar vs. Union of India, reported in (2011) 4 SCC 209 , especially in paragraph 15, which reads as under:– "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. 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." 9. In view of the aforesaid decision also, the compassionate appointment is not a matter of right, at all. It all depends upon the policy of the Government. This Court is not sitting in appeal against the policy decision of the Government. The judicial review of the policy of the compassionate appointment is not permissible nor the court can draft a better policy than the existing one. 10. In view of the aforesaid decision and in view of me Annexure-2 circular, this civil review application is, hereby, allowed and the order passed by this Court dated 21.9.2011 in W.P. (S) No. 5100 of 2011 is, hereby, recalled and reviewed because the father of the original petitioner was in service of the Government as on 10.5.2010. Contempt Case (Civil) No. 765 of 2011 1. This contempt, application is arising out of an order passed by this Court dated 21.9.2011 in W.P. (S) No. 5100 of 2011. 2. Contempt Case (Civil) No. 765 of 2011 1. This contempt, application is arising out of an order passed by this Court dated 21.9.2011 in W.P. (S) No. 5100 of 2011. 2. Today Civil Review No. 12 of 2012 has been argued out at length and the Civil Review has been allowed arid the order passed by this Court dated 21.9.2011 has been recalled and, therefore, this contempt application is hereby dismissed. Review Application allowed. Contempt Petition allowed.