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2016 DIGILAW 956 (KAR)

Mallikarjun Ladappa Vanade v. State of Karnataka

2016-12-13

A.N.VENUGOPALA GOWDA

body2016
ORDER : A.N. Venugopala Gowda, J. Ladappa Vande, a lineman in Gulbarga Electricity Supply Company Limited, died on 16.01.1996, while in service. The petitioner's mother submitted a representation on 10.11.2005 to provide appointment on compassionate ground to the petitioner, who was then a minor i.e., after the petitioner attaining the majority. By a communication dated 25.02.2006, she was informed that being a second wife of the deceased and there being no provision for providing of job to the son of a second wife, the request cannot be accepted. In R.A.No.35/2014, on the file of 3rd Additional Senior Civil Judge at Kalaburagi, a decree having been passed on 09.12.2014 declaring that the petitioner's mother is legally wedded wife and petitioner and his younger brother are the legitimate children of deceased Ladappa Vande, the petitioner submitted a representation dated 01.09.2015 to provide appointment on compassionate ground. A reminder was submitted on 01.09.2015. GESCOM having sent a communication on 03.12.2015 vide Annexure-H, this petition was filed to quash Annexure-H and direct respondent No.2 to offer appointment to the petitioner in GESCOM. 2. Sri. Ameet Kumar Deshpande, learned advocate contended that in view of the decree passed in R.A.No.35/2014, the petitioner having been held as legitimate son of deceased Ladappa Vande and having eligibility, respondent No.2 has acted arbitrarily and illegally in declining to provide appointment. He submitted that Annexure-H is illegal and that respondent No.2 liable to be directed to provide job, as the petitioner fulfils the eligibility criteria in terms of the circular of GESCOM dated 23.09.2011 as at Annexure-J. 3. Sri. Ravindra Reddy, learned advocate on the other hand contended that appointment on compassionate ground cannot be claimed as a matter of right. He submitted that there being more than 20 years intervening period after the death of Ladappa Vande, there is no justification for the petitioner to claim appointment on compassionate ground, as the family of the deceased has overcome the financial crisis. Learned counsel submitted that even if Annexure-H suffers from any infirmity, still the petitioner cannot be granted remedy in view of well-settled position of law, that appointment on compassionate ground cannot be claimed much less granted after lapse of reasonable period from the date of death of an employee. 4. Learned counsel submitted that even if Annexure-H suffers from any infirmity, still the petitioner cannot be granted remedy in view of well-settled position of law, that appointment on compassionate ground cannot be claimed much less granted after lapse of reasonable period from the date of death of an employee. 4. In view of the rival contentions and record of the case, point for consideration is: "Whether the claim of the petitioner for appointment on compassionate ground is tenable at this length of time, even if Annexure-H is held to be bad? 5. In the case of Sri. J. Mahendra v. The General Manager, BESCOM Ltd. Bangalore and another [ILR 2014 Kar 2480], claim was made for appointment on compassionate ground by a child born to second wife during the subsistence of the first marriage. In view of the rival contentions, issue which arose for consideration was with regard to the legal status and right to claim appointment on compassionate ground by the person born to second wife of the deceased employee. Issue was answered by holding that, even if a Government servant contracted a second marriage during the subsistence of first marriage, children born out of second marriage would still be legitimate, though the second marriage itself would be void. It has been further held that the children born to second wife during the subsistence of first marriage are legitimate children and consequently the employer cannot deny the right of the children born to second wife of the employee, as illegitimate, only for the purpose of compassionate appointment. 6. In the present case, in R.A.No.35/2014, learned 3rd Additional Senior Civil Judge, Kalaburagi vide judgment at Annexure-E has held that Ambavva w/o Ladappa Vande and their two children, including the petitioner herein, are the legally wedded wife and legitimate children respectively of the deceased Ladappa Vande. In view of the judgment at Annexure-E and the ratio of the decision, noticed supra, stand of respondent Nos.2 and 3, as at Annexure-H, that being a second wife's son, petitioner's case cannot be considered as arbitrary. Despite saying so, I do not deem it appropriate to relegate the case to the respondents, as the claim for compassionate ground appointment does not survive at this length of time. 7. Despite saying so, I do not deem it appropriate to relegate the case to the respondents, as the claim for compassionate ground appointment does not survive at this length of time. 7. In the case of Sanjay Kumar v. State of Bihar, ( (2000) 7 SCC 192 ), the petitioner was 10 years' old when his mother died, when she was working as a Excise Constable. The petitioner made an application on 02.06.1998 soon after death of his mother, seeking Compassionate Appointment. That was rejected on 10.12.1996 as time-barred. Another application was made on 26.12.1996 and the same was also rejected on 21.04.1997 on the same ground. The order was assailed in the High Court and the writ petition was dismissed. Writ Appeal filed having been dismissed, Apex Court was approached for remedy. Considering the submissions made and after noticing that on the date when the first application was made by the petitioner on 02.06.1988, he was a minor and not eligible for appointment, it was held that there cannot be reservation of vacancy till such time the applicant becomes a major after a numbers of years, unless there are specific provisions. It was further held that the very basis of compassionate appointment is to see the family gets immediate relief, as the object behind the scheme of compassionate appointment is to enable the family of the deceased employee to tide over sudden crisis resulting due to the death of breadeamer, who had left the family in penury without any means of livelihood. As a consequence the petition was dismissed. 8. In the case of Chief Commissioner, Central Excise and Customs, Lucknow and others v. Prabhat Singh ( (2012) 13 SCC 412 ), Apex Court has held as follows: "18. The very object of making provision for appointment on compassionate ground, is to provide succour to a family dependent on a government employee, who has unfortunately died in harness. On such death, the family suddenly finds itself in dire straits, on account of the absence of its sole bread winner. Delay in seeking such a claim is an antithesis for the purpose for which compassionate appointment was conceived. Delay in raising such a claim is contradictory to the object sought to be achieved. On such death, the family suddenly finds itself in dire straits, on account of the absence of its sole bread winner. Delay in seeking such a claim is an antithesis for the purpose for which compassionate appointment was conceived. Delay in raising such a claim is contradictory to the object sought to be achieved. The instant controversy reveals that even though Vijay Bahadur Singh, the father of the applicant (Prabhat Singh) seeking appointment on compassionate ground had died on 2.3.1996, Prabhat Singh sought judicial redress, for the first time, by approaching CAT, Allahabad Bench in 2005. By such time, there was no surviving right for appointment on compassionate ground under the OM dated 5.5.2003. As already noticed above, appointment on compassionate ground under the OM dated 5.5.2003 is permissible within three years of the death of the bread winner in harness. By now, sixteen years have passed by. and as such, there can be no surviving claim for compassionate appointment. 19. The courts and tribunals should not fall prey to any sympathy syndrome, so as to issue directions for compassionate appointments, without reference to the prescribed norms. The courts are not supposed to carry Santa Claus's big bag on Christmas eve to disburse the gift of compassionate appointment to all those who seek a court's intervention. The courts and tribunals must understand that every such act of sympathy, compassion and discretion wherein directions are issued for appointment on compassionate grounds could deprive a really needy family requiring financial support, and thereby, push into penury a truly indigent, destitute and impoverish family. Discretion is therefore ruled out. So are-misplaced sympathy and compassion." (Emphasis is supplied) 9. In the present case, petitioner's father died on 16.01.1996. At that point of time, the petitioner was a minor aged about seven years. Claim made by the petitioner's mother vide Annexure-C3 on 10.11.2005 for providing appointment to the petitioner on compassionate ground was rejected on 25.02.2006 vide Annexure-D. After the judgment as at Annexure-E was passed, the petitioner submitted an application vide Annexure-F and was notified on 03.12.2015 that the request cannot be acceded too. 10. There being intervening period of 20 years from the date of death of petitioner's father and the family having overcome the financial distress, there can no surviving claim for compassionate appointment. Hence, there is no justification to issue mandamus to the respondents to consider the claim of the petitioner. 10. There being intervening period of 20 years from the date of death of petitioner's father and the family having overcome the financial distress, there can no surviving claim for compassionate appointment. Hence, there is no justification to issue mandamus to the respondents to consider the claim of the petitioner. Consequently, the petition fails and is dismissed.