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2017 DIGILAW 2167 (JHR)

Praveen Bishram Kullu v. State Of Jharkhand

2017-12-15

D.N.PATEL, RATNAKER BHENGRA

body2017
JUDGMENT D.N. Patel, Actg. C.J. - This interlocutory application has been preferred under Section 5 of the Limitation Act for condonation of delay of 30 days in preferring the instant Letters Patent Appeal. 2. Having heard counsel for both the sides and looking to the reasons stated in the interlocutory application, especially in paragraph No. 4, there are reasonable reasons to condone the delay of 30 days in preferring the instant Letters Patent Appeal. 3. We, therefore, condone the delay of 30 days in preferring the instant Letters Patent Appeal. 4. Accordingly, I.A. No. 8386 of 2017 is allowed and disposed of. 5. This Letters Patent Appeal has been preferred by the original petitioner, whose writ petition bearing W.P. (S) No. 2799 of 2017 was dismissed by the learned single Judge vide judgment and order dated 1-8-2017, whereby, claim of this appellant for getting compassionate appointment has not been accepted and hence, the original petitioner has preferred the present Letters Patent Appeal. 6. Having heard counsel for both the sides and looking to the facts and circumstances of the case, it appears that this appellant is second son of deceased-father, who expired in course of his employment with respondent-State on 9-10-2001. This appellant had attained the age of majority on 20-9-2015 and he applied for compassionate appointment on 1-2-2016. As he was not given compassionate appointment, writ petition was preferred in the year 2017. 7. Counsel appearing for the appellant has relief upon the decisions of this Court in the case of '' Pradip Kumar Mehta vs. Central Coal Fields Ltd.'', reported in 2006 (4) JCR 184 : (2006 (3) AJR 671) (Jhr.) and in the case of '' Zeenat Praveen vs. State of Jharkhand'', reported in 2008 (3) JCR 412 : (2008 (3) AJR 135) (Jhr) . On the basis of these two decisions, it is submitted that time will start running from the date of attaining the age of majority for getting the compassionate appointment, not from the date of death of father of this appellant. REASONS 8. Having heard counsel for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following reasons : (i) Father of this appellant had expired on 9-10-2001. REASONS 8. Having heard counsel for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following reasons : (i) Father of this appellant had expired on 9-10-2001. Elder son, namely, Sushil Kullu applied for compassionate appointment and his application was rejected on 22-8-2007 and against which, Sushil Kullu who is the son of the deceased-employee, namely, Late Bishram Kullu, had preferred W.P. (S) No. 3414 of 2006, which was disposed of vide judgment and order dated 24-4-2007 and he was permitted to prefer representation. Later on, contempt application was preferred by Sushil Kullu, son of the deceased-employee, being Contempt (Civil) Case No. 461 of 2008, in which, reply was filed by the opposite parties that said Sushil Kullu''s case cannot be considered for compassionate appointment because he was not eligible to get the compassionate appointment as he was not having minimum qualification of VIII Standard and the contempt petition was dismissed by learned single Judge vide order dated 21-7-2010. Thus, it appears that later on, on attaining the age of majority on 20-9-2015, another son this appellant, applied for compassionate appointment on 1-2-2016. This is not permissible in the eyes of law. (ii) Once elder son of the deceased-employee has applied for compassionate appointment and if his case for compassionate appointment has been considered by the respondent-State authorities and once his application has been rejected vide order dated 22-8-2007 and this order was though challenged in W.P.(S) No. 3414 of 2006 and in Contempt (Civil) Case No. 461 of 2008 also, nothing has been decided in favour of Sushil Kullu, who is elder son of the deceased-employee, legal obligation of the State of Jharkhand comes to an end. Even now and then, one by one legal heir of the deceased-employee cannot apply for compassionate appointment after several years. There is no legal obligation on the part of the State to decide each and every petition, preferred by one by one legal heir of the deceased-employee. (iii) It further appears from the contention raised by the counsel for the appellant that this appellant, who is the second son, had attained the age of majority on 209-2015 and applied for compassionate appointment on 1-2-2016, but, there is no reservation to the post on compassionate ground unless the policy permits. (iii) It further appears from the contention raised by the counsel for the appellant that this appellant, who is the second son, had attained the age of majority on 209-2015 and applied for compassionate appointment on 1-2-2016, but, there is no reservation to the post on compassionate ground unless the policy permits. No such reservation for compassionate appointment has been pointed out by the counsel for the appellant. There cannot be any reservation for minors that till they attain the age of majority. Such posts should be kept vacant unless the policy permits. No such policy has been pointed out by the counsel for the appellant about the reservation of the minors for getting compassionate appointment. After more than one dozen of years, after the death of his deceased-father, this fact makes the present case different from the facts of the aforesaid two decisions, upon which the reliance has been placed by the counsel for the appellant. Hence, ratio propounded in the aforesaid two reported decisions is not applicable to the facts of the present case. (v) Compassionate appointment is not an alternative mode for getting employment. Father of the appellant expired on 9-10-2001. Application has been preferred by this appellant on 1-2-2016 after approximately 15 years. This type of application cannot be allowed by the respondents because very purpose of the compassionate appointment has been frustrated by now. (vi) It has been held by Hon''ble Supreme Court, in the case of LIC vs. Asha Ramchhandra Ambekar (Mrs.), reported in (1994) 2 Supreme Court Cases 718 : ( AIR 1994 SC 2148 ) as under : ''10. Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. No doubt Shakespeare said in '' Merchant of Venice'' : The quality of mercy is not strain- ; It droppeth, as the gentle rain from heaven Upon the place beneath it is twice bless- d; It blesseth him that gives, and him that takes;'' These words will not apply to all situations. Yeilding to instinct will tend to ignore the cold logic of law. It should be remembered that '' law is the embodiment of all Wisdom'' ?. Yeilding to instinct will tend to ignore the cold logic of law. It should be remembered that '' law is the embodiment of all Wisdom'' ?. Justice according to law is a principle as old as the hills. The courts are to administer law as they find it, however, inconvenient it may be. 11. At this juncture we may usefully refer to Martim Burn Ltd. vs. Corporation of Calcutta. At page 535 of the Report the following observations are found : '' A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must be course be given effect to whether a Court likes the result or not.'' The Courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, it should never be done. In the very case itself, there are regulations and instructions which we have extracted above. The Court below has not even examined whether a case falls within the scope of these statutory provisions. Clause 2 of sub-clause (iii) of Instructions makes it clear that relaxation could be given only when none of the members of the family is gainfully employed. Clause 4 of the circular dated January 20, 1987 interdicts such an appointment on compassionate grounds. The appellant Corporation being a statutory Corporation is bound by the Life Insurance Corporation Act as well as the Statutory Regulations and Instructions. They cannot be put aside and compassionate appointment be ordered. 13. It is true that there may be pitiable situations but on that score, the statutory provisions cannot be put aside.'' (Emphasis supplied) It has further been held by Hon''ble Supreme Court, in the case of State of U.P. vs. Paras Nath, reported in (1998) 2 SCC 412 : ( AIR 1998 SC 2612 ) 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 Primacy School Teacher under the said Rules. His application was rejected. He, thereafter, filed a writ petition before the High Court. 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 Primacy 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. 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 vs. State of Bihar, reported in (2000) 7 SCC 192 : ( AIR 2000 SC 2782 ) as under : (Emphasis supplied) '' 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 ( AIR 1998 SC 2230 ) . 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. 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. vs. Anil Badyakar, reported in (2009) 13 SCC 112 : ( AIR 2009 SC 2534 ) as under : '' 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 compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over.'' (Emphasis supplied) In view of the aforesaid decisions, as the father of this appellant expired in the year 2001 and application has beemn preferred in the year 2016 by this appellant, no compassionate appointment can be offered to him. Very purpose of the compassionate appointment does not survive except the interest of this appellant might be surviving today. He may be unemployed, but, compassionate appointment is not just to give employment to the legal heirs at any point of time. These aspects of the matter have been properly appreciated by the learned single Judge while deciding the writ petition, preferred by this appellant, being W.P.(S) No. 2799 of 2017 vide judgment and order dated 1-8-2017. We see no reason to take any other view than what has been taken by the learned single Judge. 9. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, there is no substance in this Letters Patent Appeal and the same is, therefore, dismissed.