Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 1600 (JHR)

Central Coalfields Limited v. Binod Ram Tirkey

2017-09-05

DHIRUBHAI NARANBHAI PATEL, RATNAKER BHENGRA

body2017
ORDER : DHIRUBHAI NARANBHAI PATEL, J. 1. This Letters Patent Appeal has been preferred by the original respondents in W.P.(S) No. 6177 of 2010. The writ petition was preferred by the present respondent for getting compassionate appointment which was allowed by the learned Single Judge vide judgment and order dated 21st October, 2016 and hence, the original respondents have preferred the present Letters Patent Appeal. 2. Having heard counsels for both the sides and looking to the facts and circumstances of the case, it appears that the father of the respondent (original petitioner) who was working with the appellants expired on 28th June, 2002 and hence, the respondent preferred an application for getting compassionate appointment on 17th February, 2004 and as there was delay in preferring this application the claim of the respondent (original petitioner) was rejected by the appellants. 3. Counsel appearing for the respondent has submitted that at the highest there is only delay of one and half months and it has been observed in the last paragraph on first page of the order, passed by the learned Single Judge that there is delay of only one and half months in filing the representation and on this technical ground the claim of the respondent (original petitioner) cannot be rejected. It is also submitted by the counsel for the respondent that initially on 01.08.2003 information was given about death of the father of the respondent (original petitioner) to the present appellants. Thus, the aforesaid aspects of the matter have been properly appreciated by the learned Single Judge. 4. It appears that the death of the father of the respondent has taken place on 28th June, 2002. At the relevant time the Circular which was in force is at Annexure-3 which is dated 1st January, 2002. As per this Circular, the time limit within which the application is to be preferred for getting compassionate appointment is one year. 5. Thus, after the death of the father of the respondent (original petitioner) which has taken place on 28th June, 2002, the application should have been preferred within one year whereas, the respondent (original petitioner) preferred application for getting compassionate appointment on 17th February, 2004 which is much beyond the period prescribed by the said Circular. 6. 5. Thus, after the death of the father of the respondent (original petitioner) which has taken place on 28th June, 2002, the application should have been preferred within one year whereas, the respondent (original petitioner) preferred application for getting compassionate appointment on 17th February, 2004 which is much beyond the period prescribed by the said Circular. 6. By another Circular which is dated 19th June, 2003, the period of limitation for preferring compassionate appointment application is extended to one and half years, but, the same is applicable with effect from 27th November, 2002 whereas, the death of father of the respondent (original petitioner) has taken place on 28th June, 2002 and hence, the Circular at Annexure-4 dated 19th June, 2003 is not applicable to the facts of the present case. 7. Thus, time limit to prefer compassionate appointment is only one year from the date of death of the father of the respondent (original petitioner). These aspects of the matter have not been properly appreciated by the learned Single Judge while allowing the writ petition and hence, wrongly the period of limitation has been calculated as one and half year. 8. Looking to the facts of the present case and also looking to the judgment delivered by the learned Single Judge, it appears that the learned Single Judge has condoned one and half months limitation after applying Annexure-4 to the facts of the present case. This is also not permissible in the eye of law. 9. Thus, it appears that even though Annexure-3 was applicable which prescribes the period of limitation of one year, the learned Single Judge has not only applied Annexure-4 (having an extended period of limitation of one and half years), but, has also condoned the delay of one and half months. If such type of period more than what is prescribed by Annexure-3 is allowed by the Courts while exercising powers under Article 226 of the Constitution of India perhaps, there will be no limit of such type of charity being done by this Court. Tomorrow, another case may come for having a two months delay. The same will have to be condoned by this Court, because this Court has already condoned one and half months delay, so on and so forth. There is bound to be a cut-off date as per policy of this appellant which cannot be altered by this Court. Tomorrow, another case may come for having a two months delay. The same will have to be condoned by this Court, because this Court has already condoned one and half months delay, so on and so forth. There is bound to be a cut-off date as per policy of this appellant which cannot be altered by this Court. Whenever there is cut-off date prescribed by the policy floated by the "State" there are bound to be few persons, who will fall on wrong side of that cut-off date. Court cannot be more charitable than such type of Circular. Charity beyond the Circular is cruelty to others especially when compassionate appointment is not a matter of right at all. Such types of compassionate appointments are exception to the constitutional provisions especially of Article 14 to be read with Article 16 of the Constitution of India. 10. These aspects of the matter have not been properly appreciated by the learned Single Judge while allowing the writ petition and hence, the judgment and order passed by the learned Single Judge in W.P.(S) No. 6177 of 2010 dated 21st October, 2016 deserves to be quashed and set aside. 11. The death of the father of the respondent has taken place on 28th June, 2002 and at much belated stage, the writ petition has been preferred i.e. in the year, 2010. The very purpose of the compassionate appointment has been frustrated by now. 12. It has been held by Hon'ble Supreme in the case of Umesh Kumar Nagpal v. State of Haryana and others, reported in (1994) 4 SCC 138 in paragraphs 2 to 6, as under: "2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood, is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. 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. What is further, 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. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory.. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. 3. Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible. 4. It is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even directed compassionate employment either as a matter of course or in posts above Classes III and IV We are also dismayed to find that the decision of this Court in Sushma Gosain v. Union of India has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above Classes III and IV. In the present case, the High Court has rightly pointed out that the State Government's instructions in question did not justify compassionate employment in Class II posts. However, it appears from the judgment that the State Government had made at least one exception and provided compassionate employment in Class II post on the specious ground that the person concerned had technical qualifications such as M.B.B.S., B.E., B.Tech. etc. Such exception, as pointed out above, is illegal, since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the penurious condition of the deceased's family. Neither the qualifications of his dependant nor the post which he held is relevant. etc. Such exception, as pointed out above, is illegal, since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the penurious condition of the deceased's family. Neither the qualifications of his dependant nor the post which he held is relevant. It is for this reason that we are unable to understand the following observations of the High Court in the impugned judgment: "We are of the view that the extraordinary situations require extraordinary remedies and it is open to the Government in real hard cases to deviate from the letter and spirit of the instructions and to provide relief in cases where it is so warranted. To hold as a matter of law that the Government cannot deviate even minutely from the policy-of-providing appointment only against Class III and Class IV posts, would be to ignore the reality of life these days. It would be ridiculous to expect that a dependant of a deceased Class I Officer should be offered appointment against a Class III or IV post. While we leave it to the Government to exercise its discretion judiciously in making appointments to Class I or II posts on compassionate grounds, yet a word of caution needs to be struck. It is to be noted that such appointments should be ordered in the rarest of rare cases, and in very exceptional circumstances. As a matter of fact, we would recommend that the Government should frame a policy even for such appointments." 5. It is obvious from the above observations that the High Court endorses the policy of the State Government to make compassionate appointment in posts equivalent to the posts held by the' deceased employees and above Classes III and IV. It is unnecessary to reiterate that these observations are contrary to law. If the dependant of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity. 6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. 6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over." (Emphasis supplied) 13. It has been held by Hon'ble Supreme in the case of Sanjay Kumar v. State of Bihar and others, reported in (2000) 7 SCC 192 in paragraph 3, which reads 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) 14. It has been held by Hon'ble Supreme in the case of Santosh Kumar Dubey v. State of Uttar Pradesh and others, reported in (2009) 6 SCC 481 in paragraphs 10 to 13, which read as under: "10. Admittedly, the father of the appellant was untraceable from 1981. It has been held by Hon'ble Supreme in the case of Santosh Kumar Dubey v. State of Uttar Pradesh and others, reported in (2009) 6 SCC 481 in paragraphs 10 to 13, which read as under: "10. Admittedly, the father of the appellant was untraceable from 1981. Without entering info and deciding the issue as to whether employment on compassionate grounds could be asked for in a case of deemed death under Section 108 of the Evidence Act, even if we assume for the sake of argument that it can be so demanded and asked for, such a right should and could have been exercised in the year 1988 and computing the period of five years therefrom the period of limitation for making an application for employment in the case of the appellant expired in the year 1993. 11. The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the hardship. The benefit is given so that the family can tide over such financial constraints. 12. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service. 13. In the present case, the father of the appellant became untraceable in the year 1981 and for about 18 years, the family could survive and successfully faced and overcame the financial difficulties that they faced on missing of the earning member. That being the position, in our considered opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions. The appeal, therefore, has no merit and is dismissed." (Emphasis supplied) 15. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions. The appeal, therefore, has no merit and is dismissed." (Emphasis supplied) 15. In view of the aforesaid decisions, no compassionate appointment could have been awarded by the learned Single Judge by allowing the writ petition. The aforesaid principles annunciated by the Hon'ble Supreme Court have not been properly appreciated by the learned Single Judge while allowing the writ petition. 16. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we hereby, quash and set aside the judgment and order passed by the learned Single Judge dated 21st October, 2016 in W.P.(S) No. 6177 of 2010. This Letters Patent Appeal is allowed and disposed of. In view of the final order passed in the Letters Patent Appeal, I.A. No. 6057 of 2017 also stands disposed of.