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2014 DIGILAW 274 (CHH)

Sarfaraj Ahmed v. State of Chhattisgarh

2014-07-22

PRASHANT KUMAR MISHRA

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ORDER Heard learned counsel for the parties. 1. The petitioner is challenging the impugned order dated 13-1-2011 (Annexure – P/7) passed by the Chief Medical & Health Officer, Jashpur, whereby his application for grant of compassionate appointment has been rejected. 2. At the time of death i.e. on 28-7-2004 the petitioner's father namely; Syed Sajjad Ahmed was working as Driver in the office of the Community Health Center, Jashpurnagar. At that time the petitioner was minor. He passed 10th class examination in June, 2009 and thereafter, moved applications for grant of compassionate appointment on 7-9-2009 & 10-9-2009. The petitioner also passed Class XII examination in October, 2011. The petitioner submitted representation on 21-3-2012. His earlier writ petition, bearing WP (S) No.1540 of 2013, was dismissed as withdrawn by order dated 14-6-2013 with liberty to file a proper petition challenging the order of rejection of his claim for compassionate appointment. 3. Learned counsel for the petitioner would submit that the application of the petitioner for grant of compassionate appointment was rejected on 13-1-2011 by mentioning that the application moved after the prescribed period of six months, however, since, thereafter, the State Government issued a circular on 7-3-2011 extending the period of limitation from six months to three years. Learned counsel would further submit that since at the time of death of his father, the petitioner was a minor, he would be entitled to move application within three years of the date of attaining the age of majority and, as such, his application filed in September, 2009 was within limitation and should have been considered by the authorities. 4. In the order dated 13-1-2011 (Annexure – P/7), whereby the petitioner's representation has been rejected, it has been mentioned that under the circular dated 23-7-2003 issued by the Department of General Administration the period of three years was prescribed for moving an application for compassionate appointment, however, in the circular dated 2-2-2006 the said period was reduced up to 6 months from the date of death of the concerned employee. Now vide circular dated 7-3-2011 the period has again been prescribed or extended up to three years. 5. Be that as it may, the fact remains that the petitioner did not submit the application within three years of death of the deceased employee. Now vide circular dated 7-3-2011 the period has again been prescribed or extended up to three years. 5. Be that as it may, the fact remains that the petitioner did not submit the application within three years of death of the deceased employee. When his father died, the petitioner was a minor and, as such, unable to move an application for compassionate appointment may not improve his case and the said eventuality may not extend the period of limitation because in State of Manipur vs. Md. Rajaodin, AIR 2003 SCW 4339 the Supreme Court, after having heard various cases on compassionate appointment, observed as under : "11. In Smt. Sushma Gosain and Ors. v. Union of India and Ors. ( 1989 (4) SCC 468 ) it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointments on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati (Smt.) v. Union of India and ors. (1991 Supp (2) SCC 689) and Union of India and ors. v. Bhagwan Singh ( 1995 (6) SCC 476 ). In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. ( 1998 (5) SCC 192 ) it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely 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, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Out of purely 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, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision." (Emphasis supplied) 6. It is a trite law that appointment on compassionate ground is not a method of recruitment, but is a facility to provide for immediate rehabilitation of the family in distress for relieving the dependent family members of the deceased employee from destitution. In other words, the object of compassionate appointment is to enable penurious family to tide over the sudden financial crisis and is not to provide employment. 7. In Haryana State Electricity Board and another vs. Hakim Singh, (1997) 8 SCC 85 the Supreme Court held that "the whole object of any compassionate appointment schemes is to give succor to the family to tide over the sudden financial crisis befallen the dependents on account of the untimely demise of its sole earning members." 8. The Supreme Court in State of J & K and others Vs. Sajad Ahmed Mir, 2006 (5) SCC 766 , in para 11 has held as under: “11…….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 complete with each other. It is in consonance with Article 14 of the Constitution. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and complete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should not be departed from except where compelling circumstances demand, such as, death of the sole bread winner, the family survived and the family suffering because of the setback. Once it is proved that inspite 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.” 9. Applying the well settled principle of law to the facts of the case and the family members of the deceased employee had survived for about 10 years, the reasons for compassionate appointment is to tide over the financial problem of the dependants of the deceased employee, but not to provide employment on compassionate basis de hors the constitutional scheme of employment. There is no merit in this petition. 10. As a result, the writ petition, being bereft of merit, is liable to be and is hereby dismissed at the motion stage itself.