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2017 DIGILAW 796 (JHR)

Central Coal Filelds Ltd. v. Sanjay Kumar

2017-05-03

D.N.PATEL, RATNAKER BHENGRA

body2017
ORDER D.N. Patel, J. (Oral) - I.A. No. 6775 of 2014 The present interlocutory application has been preferred under Section 5 of the Limitation Act, for condoning the delay of 324 days in preferring this Letters Patent Appeal. 2. Having heard counsels for both the sides and looking to the reasons stated in this interlocutory application especially in paragraph nos. 6, 7, 8 and 9 thereof, there are reasonable reasons for condoning the delay in preferring this Appeal. We therefore, condone the delay in preferring this L.P.A. No. 562 of 2014 with cost of Rs. 1,000/- (Rs. one thousand) each, i.e. total amount of Rs. 2,000/. This amount will be paid by the appellants to the respondents within a period of eight weeks from today. 3. With this observation, this interlocutory application is allowed and disposed of. L.P.A. No. 562 of 2014 4. By consent of the learned counsels for both the sides, this Letters Patent Appeal is taken up for hearing. 5. This Letters Patent Appeal has been preferred against the judgment and order delivered by the learned Single Judge in W.P.(S) No. 2708 of 2007 dated 18th January, 2014, whereby, the petition preferred by the respondents was allowed and hence, the original respondents have preferred the present Letters Patent Appeal. 6. Having heard counsels for both the sides and looking to the facts and circumstances of the case, it appears that the mother of the respondents (original petitioners) expired on 7th October, 2002 and, therefore, respondent No. 2 (original petitioner No. 2) is seeking compassionate appointment. 7. It further appears from the facts of the case, as has been argued by counsels for both the sides, that initially, the son of the deceased mother, who is respondent No. 1 (original petitioner No. 1) had applied for compassionate appointment on 17th June, 2004. He was given compassionate appointment, but, he failed in medical test and hence, respondent No. 1 (original petitioner No. 1) could not join the services. Thus, the legal heir of the deceased mother, who was an employee of this appellant, was given the employment, but, because of the fact that this original petitioner No. 1 was medically unfit and hence, he could not avail the right of compassionate appointment. It is not obligatory on the part of the appellants that one by one to all the legal heirs offer should be made. It is not obligatory on the part of the appellants that one by one to all the legal heirs offer should be made. Suffice, it will be for this appellants to offer the compassionate appointment to the first applicant of the deceased employee. In the facts of the present case, the first applicant i.e. the legal heir of the deceased employee had applied for compassionate appointment and he was also offered the compassionate appointment, but, because of medically unfit, he could not avail the right of compassionate appointment. The legal obligation of the appellants comes to an end. There is no extension of the legal obligation on the part of these appellants to offer the compassionate appointment one by one to all the legal heirs. 8. Now the minor, who is respondent No. 2 (original petitioner No. 2), daughter of the deceased employee, leisurely, had preferred application in the year, 2006. This application was rejected on 21st November, 2006 which was under challenge in the writ petition. Thus, it appears that after rejection of the second application by another legal heir, a writ petition was preferred. 9. It appears that the very purpose of compassionate appointment has been frustrated by now. It ought to be kept in mind that the compassionate appointment is an exception to Article 14 and 16 of the Constitution of India. The legal heir has not to compete with the public at large for the public employment. This exception cannot be treated as a Rule. The mother of these respondents (original petitioners) has expired on 7th October, 2002 and by now, one and half decade period has been lapsed. 10. 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 especially in paragraph no. 3 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 . 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) 11. 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 especially in paragraph nos. 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. 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. 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. 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. 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. 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. 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. 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) 12. It has been held by Hon''ble Supreme in the case of MGB Gramin Bank v. Chakrawarti Singh, reported in (2014) 13 SCC 583 especially in paragraph nos. 6 to 9 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. 7. In Umesh Kumar Nagpal v. State of Haryana this Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court observed as under: (SCC pp. 14041, paras 2, 4 & 6) "2. .......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 the post held by the deceased. ... 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. 4. ... The only ground which can justify compassionate employment is the penurious condition of the deceased''s family. * * * 6. ... The consideration for such employment is not a vested right.... The object being to enable the family to get over the financial crisis ............." 8. An "ameliorating relief" should not be taken as opening an alternative mode of recruitment to public employment. * * * 6. ... The consideration for such employment is not a vested right.... The object being to enable the family to get over the financial crisis ............." 8. An "ameliorating relief" should not be taken as opening an alternative mode of recruitment to public employment. Furthermore, an application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated. 9. The courts and the tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments." (Emphasis supplied) 13. In view of the aforesaid decisions and also keeping in mind the fact that the son of the deceased employee was already offered the compassionate appointment, but, he could not avail the compassionate appointment because of his own personal reasons as he was medically unfit. No error has been committed by the appellants in rejecting the application preferred by another legal heir of the deceased. These aspects of the matter have not been properly appreciated by the learned Single Judge while allowing writ petition being W.P.(S) No. 2708 of 2007 vide judgment and order dated 18th January, 2014. 14. Looking to the peculiar facts of the present case, as stated here-in-above especially that : (a) the son of the deceased employee was already offered the compassionate appointment; (b) the legal obligation of these appellants comes to an end once, one of the legal heirs is offered compassionate appointment; (c) there is no legal obligation on the part of these appellants to offer compassionate appointment one by one, to all the legal heirs of the deceased employee; (d) the daughter of the deceased employee is preferring application in the year, 2006 and the petition is allowed in the year, 2014. Thus, compassionate appointment cannot be given after approximately one and half decades in view of the aforesaid decisions. These facts make the present case different from the facts of the judgment reported in (2011) 4 SCC 209 upon which the reliance has been placed by the learned Single Judge in paragraph No. 7 of the impugned order and hence also, the judgment and order delivered by the learned Single Judge deserves to be quashed and set aside. 15. These facts make the present case different from the facts of the judgment reported in (2011) 4 SCC 209 upon which the reliance has been placed by the learned Single Judge in paragraph No. 7 of the impugned order and hence also, the judgment and order delivered by the learned Single Judge deserves to be quashed and set aside. 15. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, the judgment and order passed by the learned Single Judge in W.P.(S) No. 2708 of 2007, dated 18th January, 2014 is, hereby, quashed and set aside as there was no error committed by these appellants in rejecting the application for compassionate appointment preferred by respondent No. 2 (original petitioner No. 2). 16. Accordingly, this Letters Patent Appeal is allowed and disposed of. In view of the final order passed in main petition, I.A. No. 5871 of 2015 also stands disposed of.