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Jharkhand High Court · body

2016 DIGILAW 1452 (JHR)

Sharda Devi v. State of Jharkhand

2016-10-17

S.N.PATHAK

body2016
ORDER : Heard Mr. Sanjay Kumar Sinha, learned counsel for the petitioner and Mr. R.R. Mishra, learned G.P.-II appearing on behalf of the respondents. 2. The petitioner has filed the instant writ petition for quashing the order dated 13.09.2012, issued by the Executive Engineer, Drinking Water & Sanitation Division, Ranchi West vide memo no. 1258 by which claim of the petitioner for appointment on compassionate ground has been refused pursuant to the letter no. 1217, dated 21.08.2012, issued by the Deputy Collector, Establishment. The petitioner has further prayed for a direction upon the respondents to appoint petitioner on compassionate ground as her husband died-in-harness. 3. The issue involved in the present writ petition as whether dependent of the deceased-work charge employee can claim consideration of his/her claim for appointment in service of the State on compassionate ground in terms of the policy/scheme framed by the State Government?” In order to determine the issue, it is relevant to notice relevant facts of the case in hand, acts, rules and circulars/guidelines issued by the State Government from time to time. 4. The fact in brief is that petitioner's husband Birendra Sahu was appointed as work charge truck driver on 06.01.1990 and was working under the respondents and died in harness on 23.12.2004. Said Birendra Sahu was regularised w.e.f. 06.01.1995 but due to official latches no confirmation letter in this regard could be issued during his life time. The petitioner made several representations well within the prescribed time for her appointment on compassionate ground and it was also duly forwarded to the concerned authorities for consideration. 5. Learned counsel for the petitioner submits that representation of the petitioner remained pending for several years and later on the same has been rejected vide Annexure-1. Grievance of the petitioner is that the respondents have not considered case of the petitioner for appointment on compassionate ground though she applied for the same well within time. It is further submitted that the grounds for rejection of petitioner's application for appointment on compassionate ground is that her husband was taken into regular establishment from work charge establishment after his death and as such, he could not be treated as a regular employee in view of memo no. 4379, dated 16.07.2008. It is further submitted that the grounds for rejection of petitioner's application for appointment on compassionate ground is that her husband was taken into regular establishment from work charge establishment after his death and as such, he could not be treated as a regular employee in view of memo no. 4379, dated 16.07.2008. Learned counsel for the petitioner has placed reliance on Annexures3 and 3/1 to the writ petition and submitted that rejection of claim of the petitioner is against the guidelines and as per memo no. 3423, dated 01.08.2007, issued by Drinking Water & Sanitation Department and vide memo no. 4379, dated 16.07.2008, issued by the Personnel & Administrative Department, the work charge employee are also entitled for appointment on compassionate grounds like other employees of the State. 6. On the other hand learned GP-II draws attention of this Court towards counter affidavit filed by respondents and fairly submits that petitioner is not entitled for the appointment on compassionate ground as her husband was “work charge” employee during his life time. Petitioner's case was placed before the District Level Compassionate Committee in its meeting dated 28.07.2012 and the said Committee examined entire case. However, the petitioner's claim has been rejected in consideration of letter no. 4379 dated 16.07.2008, issued by Personnel Reforms & Administrative Department, Jharkhand as her husband died on work charged establishment and was not regularised during his service period. So the benefits of compassionate appointment is not admissible to the dependents of deceased employee. 7. I have heard the arguments advanced by the parties and gone through records of the case. It is desirable to notice relevant rules and guidelines framed and issued by the State Government from time to time. 8. In the then State of Bihar there were establishments of different natures, such as, permanent, establishment, commonly known as regular establishment, temporary establishment and work-charged establishment. Work-charged establishments are found only in Works Department such as, Public Works Department now known as Road Construction Department and Building Construction Department, Public Health Engineering Department now known as Drinking Water and Sanitation Department, Water Resources Development Departments, such as Irrigation and Minor Irrigation Departments, Rural Engineering Organisation etc. Rule 59 of the Bihar P.W.D. Code deals with work-charged establishment and reads as follows:- “59. Rule 59 of the Bihar P.W.D. Code deals with work-charged establishment and reads as follows:- “59. Works establishment will include such establishment as is employed upon the actual execution, as distinct from the general supervision of a specific work or of sub-works of a specific project or upon the subordinate supervision of departmental labour, stores and machinery in connection with such work or sub-work. When employees borne on the temporary establishment are employed on work of this nature, their pay should, for the time being, be charged direct to works.” Work charged establishment has been defined by the Supreme Court in the case of Jasbant Singh V. Union of India, reported in (1979) 4 SCC 440 , which reacs as under: “A work-charged establishment broadly means an establishment of which the expenses, including the wages and allowance of the staff, are chargeable to works. The pay and allowances of employees who are borne of a work-charged establishment, are generally shown as a separate sub-head of estimated cost of the works.” The aforesaid definition was also noticed by the Supreme Court in the case of State of Maharashtra v. Purushottam, reported in (1996) 9 SCC 266 . In the aforesaid two cases, there was no condition of service, framed by the State with regard to the work-charged employees. In the case of Jaswant Singh (Supra) the Supreme Court observed that the work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. They do no get any relief under the Payment of Gratuity Act nor do they receive any retrenchment benefits or any benefit under the Employees State Insurance Scheme”. However, the Supreme Court held that the work-charged employees are entitled to the benefits of the provisions contained in the Industrial Disputes Act, 1947. So far as the State of Bihar (now Bihar and Jharkhand) is concerned, the State Government has laid down “condition of service of the work-charged employees”, circulated vide Finance Departments Memo No. 1344 dated 4th February, 1949, which read as under: “Subject-Revised conditions of service of work charged establishment. So far as the State of Bihar (now Bihar and Jharkhand) is concerned, the State Government has laid down “condition of service of the work-charged employees”, circulated vide Finance Departments Memo No. 1344 dated 4th February, 1949, which read as under: “Subject-Revised conditions of service of work charged establishment. The existing distinction between work-charged establishment temporary and permanent establishment and daily labour as given in the PW Code and P.W.D. Accounts Code will be maintained but the conditions of service of work-charged establishment will hence forth be identical with those of temporary Government servants. The posts in work-charged establishment which are of permanent nature, that is required for 12 months in the year and for long and indefinite period will be made permanent and included in permanent establishment and the men employed on these posts, having one years approved service will be included amongst permanent Government employees. Deaths in this connection are being worked out and till this is done, the conditions of service applicable to temporary Government servants will apply to all work-charged posts. Vide F.D. Memo NO. 1344 dated 4.2.1949”. In the year 1950 the Government of Bihar framed a Rule under proviso to Article 309 of the Constitution of India, whereby all Enactments, Rules and orders, regulating recruitment and condition of services of persons, appointed under the State, which were in force immediately before 26th January, 1950, were declared to be Rule as if made under proviso to Article 309 of the Constitution of India. This was gazetted on 26th April, 1950 and is quoted hereunder: “Bihar Gazette P.1.2(ii)No. 17, dated 26th April, 1950. Political and Appointment Department, Government of Bihar Notification No. 3555-31-27 50-A, dated 15th April, 1950. This was gazetted on 26th April, 1950 and is quoted hereunder: “Bihar Gazette P.1.2(ii)No. 17, dated 26th April, 1950. Political and Appointment Department, Government of Bihar Notification No. 3555-31-27 50-A, dated 15th April, 1950. In exercise of power conferred by the proviso to Article 309 of the Constitution of India the Governor of Bihar is pleased to make the following rules, namely:- All enactments, rules and orders, which are made under any enactment or otherwise, which regulated the recruitment and condition of services of persons appointed through public services and posts in connection with the affairs which are now the affairs of the State of Bihar and which are enforced immediately before the 26th January, 1950 shall until provision is made by or under any act of the State legislature to regulate such recruitment and conditions of service, be enforced as if they had been make by virtue of the power under the said proviso.” 9. Similar issue fell for consideration before the Full Bench of this Hon'ble Court and it was held that the dependents of work-charged employees are not entitled to claim appointment on compassionate ground and entitled (sic) to claim appointment on compassionate ground. In the case of MGB Gramin Bank v. Chakrawarti Singh reported in (2014) 13 SCC 583 , it has been held at para6 as under: “6. Every appointment to public office must be made by strictly adhering to the mandatory requirement of Article 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its breadearner. Mere death of a government employee in-harness does not entitled the family to claim compassionate employment. The competent authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing 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. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.” 10. In the circumstances, it is apparent that it has been held by various judicial pronouncements that the dependent of work charged employee is not (sic) Considering aforesaid aspects of the matter, I am of the considered opinion that petitioner is not entitled for the relief claimed in the instant writ petition. As a cumulative effect, this writ application merits dismissal.