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2017 DIGILAW 1199 (JHR)

Ashok Gope v. State Of Jharkhand

2017-07-19

D.N.PATEL, RATNAKER BHENGRA

body2017
ORDER D.N.Patel, A.C.J. (Oral) - Office defects are tentatively ignored and this matter is taken up for its hearing. 2. This Letters Patent Appeal has been preferred by the original petitioner, who had preferred W.P.(S) No. 2275 of 2010 for compassionate appointment because of the fact that his father was unnecessarily compelled to retire prematurely on 07.11.1991 on the ground of medical unfitness, but, as per this appellant, who is a son, his father was absolutely fit. Had he not been compelled to retire, in 1991, he would have continued in the job up to the age of his superannuation i.e. 31.01.1994, but, he expired in the year 1993 and therefore, this appellant was praying for compassionate appointment, but, said writ petition was dismissed by the learned Single Judge vide order dated 25.04.2016 and hence, present Letters Patent Appeal has been preferred by the original petitioner. 3. Having heard counsel for both the sides and looking to the facts and circumstances of the case, it appears that father of this appellant, namely, Mani Ram Gope, was working as a peon. As per respondents-Government, as he was medically unfit, he was given premature retirement on 07.11.1991. It further appears from the facts of the case that legally payable retirement dues, including pension as well as gratuity, were paid to the wife of the original employee, who is mother of this appellant. Neither the original employee, namely, Mani Ram Gope nor the wife of Mani Ram Gope has ever challenged the retirement nor they have accepted the retirement benefits under protest. It further appears from the facts of the case that this appellant had previously also preferred W.P.(S) No. 953 of 2003 before this Court for the very same purpose for getting compassionate appointment, but, the same was dismissed by the learned Single Judge vide order dated 19.08.2009 by a detailed speaking order. This order has never been carried in the Letters Patent Appeal by this appellant. Thus, the earlier writ petition, preferred by the very same appellant, for the very same prayer and for the very same facts and reasons, has already been decided against this appellant and the same has attained its finality. This order has never been carried in the Letters Patent Appeal by this appellant. Thus, the earlier writ petition, preferred by the very same appellant, for the very same prayer and for the very same facts and reasons, has already been decided against this appellant and the same has attained its finality. Now, again the petition has been preferred by this appellant with the very same facts of the retirement of his father on 07.11.1991 on the ground that his father was though medically fit, was wrongly compelled to be retired and as his father had expired in the year 1993 and now, his mother has also expired, this appellant should be given compassionate appointment. As stated here-in-above, earlier writ petition bearing W.P.(S) No. 953 of 2003 was already dismissed vide order dated 19.08.2009. No error has been committed by the learned Single Judge while dismissing the second writ petition preferred by this appellant bearing W.P.(S) No. 2275 of 2010 vide order dated 25.04.2016. Moreover, the very purpose of the compassionate appointment has been frustrated by now. Father of the appellant had expired in the year 1993 and by now, approximately 24 years has lapsed i.e. about quarter of century. Compassionate appointment is not a right vested in this appellant. Upon query, raised by this Court, it is submitted by the counsel for the appellant that this appellant is doing business of milk. 4. It has been held by Hon''ble Supreme Court in the case of State of U.P and Ors. v. Paras Nath, (1998) 2 SCC 412 , as under: "4. Seventeen years after the death of his father, the respondent, on 8-1-1986, made an application for being appointed to the post of a Primary School Teacher under the said Rules. His application was rejected. He, thereafter, filed a writ petition before the High Court. This writ petition was allowed by the High Court and an appeal from the decision of the Single Judge of the High Court was also dismissed by the Division Bench of the High Court. Hence the State has filed the present appeal. 5. The purpose of providing employment to a dependant of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. Hence the State has filed the present appeal. 5. The purpose of providing employment to a dependant of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case." (Emphasis Supplied) It has further been held by Hon''ble Supreme Court in the case of Sanjay Kumar v. State of Bihar and Ors, (2000) 7 SCC 192 , as under: "3. We are unable to agree with the submissions of the learned Senior Counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education v. Pushpendra Kumar . It is also significant to notice that on the date when the first application was made by the petitioner on 2-6-1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief." (Emphasis Supplied) It has further been held by Hon''ble Supreme Court in the case of Eastern Coalfields Ltd. v. Anil Badyakar and Ors, (2009) 13 SCC 112 , as thus: "20. The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over." (Emphasis Supplied) It has further been held by Hon''ble Supreme Court in the case of Bhawani Prasad Sonkar v. Union of India and Ors, (2011) 4 SCC 209 , 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 recognized 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." (Emphasis Supplied) It has further been held by Hon''ble Supreme Court in the case of MGB Gramin Bank v. Chakrawarti Singh, (2014) 13 SCC 583 , as under: "6. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 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 bread earner. Mere death of a government employee in harness does not entitle the family to claim compassionate employment. 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 bread earner. Mere death of a government employee in harness does not entitle 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. 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." (Emphasis Supplied) 5. In view of the aforesaid decisions also, after 24 long years from the year father of this appellant had expired, no compassionate appointment can be given to the appellant. Previously also, W.P.(S) No. 953 of 2003 was dismissed for the very same facts and for the very same reasons by a detailed speaking order vide order dated 19.08.2009 and hence, no second writ petition can be preferred on the principle of res judicata. We see no reason to take any other view than what has been taken by the learned Single Judge while dismissing W.P.(S) No. 2275 of 2010. We are in agreement with the reasons stated by the learned Single Judge vide order dated 25.04.2016 and hence, there is no substance in this Letters Patent Appeal and the same is dismissed with cost of Rs. 10,000/- (Rupees Ten Thousand only), which will be deposited by this appellant before the Advocates Welfare Fund, Jharkhand, Ranchi within a period of eight weeks from today. 6. Registry General of this Court is directed to send the copy of this order to the Advocates Welfare Fund, Jharkhand, Ranchi.