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Orissa High Court · body

2015 DIGILAW 26 (ORI)

Union of India v. Bitali Rout

2015-01-15

A.K.RATH, AMITAVA ROY

body2015
JUDGMENT A.K. Rath, J. 1. The petitioners call in question the legality and propriety of the order dated 16.5.2008 passed by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter referred to as “the Tribunal”) in Original Application No. 875 of 2006, whereby and whereunder the application filed by the opposite parties seeking compassionate appointment has been allowed. 2. The only question which arises for our consideration is as to whether a direction for compassionate appointment can be given to any member of the family after lapse of 28 years of the death of the employee. 3. The husband of the opposite party no.1 and the father of the opposite party no.2 while working as CPC Gangman in the Railways died on 12.11.1978. After opposite party no.2 attained majority, opposite party no.1 made a representation to the petitioners on 5.12.1993 seeking employment on compassionate ground in favour of her son. Since the representation filed by her was not heeded to, they approached the Tribunal in O.A. No.353 of 2004. By order dated 16.6.2004, the learned Tribunal disposed of the said application directing the petitioners, who are respondents therein, to consider the grievance of the applicant and pass necessary order. Thereafter, the matter was considered by the petitioners and by order dated 26.10.2006, the request for providing employment on compassionate ground had been rejected on the ground that there was no representation prior to 2004 and that the application for compassionate appointment had been submitted beyond 20 years of the death of the ex-employee. Thereafter, the opposite parties laid another application being O.A No.875 of 2006 to quash the order of rejection dated 26.10.2006 with further prayer to provide employment to the opposite party no.2. The Tribunal by order dated 16.5.2008, vide Annexure-3, allowed the said application. 4. Pursuant to issuance of notice, a counter affidavit has been filed by the petitioners reiterating the grounds taken in the order of rejection. 5. Heard Mr.A.K.Mishra, learned counsel for the petitioners and Mr.N.R.Routray, learned counsel for the opposite parties 1 and 2. 6. In Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 , the Apex Court held that 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. In Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 , the Apex Court held that 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. 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. 7. The appointment on compassionate ground to the dependant of the deceased employee is well known. In SAIL vs. Madhusudan Das, (2008) 15 SCC 560 , the apex Court held that Articles 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts which have fallen vacant. Appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said rule. It is a concession, not a right. 8. In Bhawani Prasad Sonkar vs. Union of India and others, (2011) 4 SCC 209 , the apex Court directed that the following factors have to be borne in mind while considering the claim for employment on compassionate grounds. “(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. 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.” 9. On the anvil of the decisions cited supra, the matter is required to be examined. We find that the father of the opposite party no.2 died on 12.11.1978. After lapse of 26 years, the opposite parties approached the learned Tribunal in OA No.353 of 2004 wherein a direction was issued by the learned Tribunal to the petitioners to consider their case. After considering the case in its proper perspective, the representation of the petitioners was rejected. Thereafter, the opposite parties 2 and 3 approached the Tribunal in OA No.875 of 2006 wherein a direction was issued to consider the case of the opposite party no.2 for compassionate appointment. 10. Appointment on compassionate ground can not be claimed as a matter of right, nor an applicant becomes entitled automatically for appointment. The same depends on a host of factors enumerated in Bhawani Prasad Sonkar (supra). In the meantime 35 years have elapsed. The family of the opposite parties 2 and 3 would tide over the financial crisis. The learned Tribunal has brushed aside the same and has mechanically allowed the application. 11. In the wake of the aforesaid, the order dated 16.5.2008 passed by the learned Tribunal in Original Application No. 875 of 2006 is hereby quashed. The writ petition is accordingly allowed.