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2017 DIGILAW 1837 (JHR)

Zeenat Parween v. State of Jharkhand

2017-11-01

D.N.PATEL, RATNAKER BHENGRA

body2017
ORDER : D.N. Patel, J. I.A. No. 7946 of 2016 This interlocutory application under Section 5 of the Limitation Act has been tiled by the appellant for condonation of delay of 168 days in preferring the instant Letters Patent Appeal. 2. Having heard learned counsel and looking to the reasons stated in paragraphs 4 and 5 of the interlocutory application, there are reasonable reasons for condoning the delay in preferring the instant Letters Patent Appeal. 3. Accordingly, I.A. No. 7946 of 2016 is allowed and delay in filing the instant Letters Patent Appeal is condoned. L.P.A. No. 558 of 2016 4. This Letters Patent Appeal has been preferred by the original petitioner being aggrieved and feeling dissatisfied by the judgment and order delivered by learned Single Judge in W.P.(S) No. 4639 of 2014 dated 6th May, 2016, reported in 2016(3) JLJR 291 whereby the petition preferred by this appellant for getting compassionate appointment being married daughter of the deceased-employee was rejected and hence the original petitioner has preferred this Letters Patent Appeal. 5. Having heard learned counsels for both sides and looking to the facts and circumstances of the case, it appears that the further of this appellant expired on 20th September, 2012. He was serving with the respondents as Assistant Sub-Inspector (Trainer). It further appears from the facts that this appellant is a married daughter of the deceased-employee, namely, Ahmad Hussain Mallick and her marriage was solemnized on 28th March, 2010. Mother of the appellant applied for compassionate appointment of this appellant, on 22nd April, 2013 which has been rejected by order dated 21st October, 2013 (Annexure-5) and this order of rejection was under challenged in the writ petition being W.P.(S) No. 4639 of 2014. 6. It appears that there was no vested right in this appellant to get compassionate appointment. Normally it is an exception to Articles 14 and 16 of the Constitution of India. Only with a view to provide immediately, financial assistance to the members of the deceased's family, such type of exception, has been carved out. If the applicant, who is seeking compassionate appointment, was not dependent upon the deceased-employee, such type of applicant cannot get compassionate appointment. Compassionate appointment is not an alternative methodology, of getting public employment. 7. Only with a view to provide immediately, financial assistance to the members of the deceased's family, such type of exception, has been carved out. If the applicant, who is seeking compassionate appointment, was not dependent upon the deceased-employee, such type of applicant cannot get compassionate appointment. Compassionate appointment is not an alternative methodology, of getting public employment. 7. It has been held by Hon'ble Supreme Court in the case of State of U.P. vs. Paras Nath, as reported in (1998) 2 SCC 412 : 1998 (2) PLJR (SC) 1 at paragraph nos. 4, 5 and 6, 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 dependent 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. 6. We may, in this connection, refer to only one judgment of this Court in the case of Union of India vs. Bhagwan Singh. In this case, the application for appointment on similar compassionate grounds was made twenty years after the railway servant's death. This Court observed: "The reason for making compassionate appointment, which is exceptional, is to provide immediate financial assistance to the family of a Government servant who dies-in-harness, when there is no other earning member in the family."” (Emphasis supplied) 8. It has further been held by the Hon'ble Supreme Court in the case of Sanjay Kumar Vs. This Court observed: "The reason for making compassionate appointment, which is exceptional, is to provide immediate financial assistance to the family of a Government servant who dies-in-harness, when there is no other earning member in the family."” (Emphasis supplied) 8. It has further been held by the Hon'ble Supreme Court in the case of Sanjay Kumar Vs. State of Bihar & Ors., as reported in (2000) 7 SCC 192 , at paragraph nos. 2 & 3, as under:- "2. Learned Senior Counsel appearing on behalf of the petitioner has placed strong reliance on the decision of a learned Single Judge of the Patna High Court in Chandra Bhushan Vs. State of Bihar. Learned Senior Counsel points out that it was held in that case that an applicant's right cannot be defeated on the ground of delay caused by authorities which was beyond the control of the applicant. Learned Senior Counsel further points out that instead of following the above judgment, the same learned Judge has now held on 21.4.1997 that the application is time-barred. Learned counsel has placed before us a judgment of this Court in Director of Education (Secondary) vs. Pushpendra Kumar. He submits that, in this case, a direction was given to create supernumerary posts. 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 breadearner 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 vs. 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) 9. 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) 9. It has also been held by the Hon'ble Supreme Court in the case of Santosh Kumar Dubey vs. State of Uttar Pradesh & Ors., as reported in (2009) 6 SCC 481 , especially at paragraph nos. 11 and 12, as under:- "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 family suffers financial hardship. The benefit is given so that the family can tide over such financial constrains. 12. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the breadearner 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." (Emphasis supplied) 10. It has also been held by the Hon'ble Supreme Court in the case of M/s Eastern Coalfields Ltd. vs. Anil Badyakar & Ors., as reported in AIR 2009 SC 2534 , especially at paragraph no. 19, as under:- "19. 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. In the instant case the employee died-in-harness in the year 1981 and after a long squabble by the dependents of the deceased, they arrived at a settlement that the son-in-law of the second daughter who is unemployed may request for appointment on compassionate grounds. The request so made was accepted by the Personnel Manager of the Company subject to the approval of the Director of the Company. The request so made was accepted by the Personnel Manager of the Company subject to the approval of the Director of the Company. The Director (P), who is the competent authority for post facto approval, keeping in view the object and purpose of providing compassionate appointment has cancelled the provisional appointment on the ground that nearly after 12 years from the date of death of the employee such an appointment could not have been offered to the so-called dependent of the deceased employee. In our considered view, the decision of the employer was in consonance with Umesh Kumar Nagpal's case and the same should not have been interfered with by the High Court." (Emphasis supplied) 11. It further appears from the facts that nowhere it has been stated that this appellant was dependent upon her father as on the date of death of her father i.e. 20th September, 2012. Such type of legal heir cannot be given compassionate appointment. This aspect of the matter has been properly appreciated by the learned Single Judge while dismissing the writ petition. 12. Much has been argued out by the counsel for the appellant that widow of the deceased-employee is dependent upon this appellant, as this appellant is a sole child, hence this appellant should be given compassionate appointment. This contention is not helpful for getting compassionate appointment, by the married daughter, who is not dependent, upon her father as on date of death of her father. A person who is seeking compassionate appointment, should be dependent, otherwise, rest of the legal heirs including widow may be entitled for family pension or some other type of compensation if they are falling within the scheme floated by the State Government, like, if the death has been caused by extremists, the widows are getting amount of compensation, and compassionate appointment, if the employee has died in an accident, widows are getting additional amount over and above the family pension. It ought to be kept in mind that after the death of husband, widow, may be dependent upon a child who is never dependent upon him/her father. Such type of child of the deceased-employee cannot get compassionate appointment mainly for the reason that such child is not dependent upon his/her father. 13. Much has been argued out by the counsel for the appellant about 42% disability of this appellant. Such type of child of the deceased-employee cannot get compassionate appointment mainly for the reason that such child is not dependent upon his/her father. 13. Much has been argued out by the counsel for the appellant about 42% disability of this appellant. Such disability is not a ground to get compassionate appointment. The ground to get compassionate appointment is the dependency upon her father as on date of death of her father. Learned counsel for the appellant has not even argued out that this appellant was dependent upon her father as on date of death of her father. Hence, no such compassionate appointment can be awarded to this appellant. 14. Sine qua non for getting compassionate appointment by any child/legal heir, is dependency upon the deceased-employee, otherwise, if such a child, who is capable of earning independently and is feeding 4-5 elderly persons, that makes no difference at all for getting compassionate appointment, because the child is capable of being survived himself/herself without help of his/her father. 15. In the facts of the present case, nowhere it has been stated that this appellant was dependent upon, her father as on date of death of her father. This fact, ousts the candidature of this appellant for getting compassionate appointment. This aspect of the matter has been properly appreciated by the learned Single Judge while dismissing the petition preferred by this appellant and we see no reason to take any other view than what is taken by the learned Single Judge. Hence, there is no substance in this Letters Patent Appeal and the same is, therefore, dismissed.