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2018 DIGILAW 8 (JHR)

Mandui Kui v. State of Jharkhand

2018-01-02

AMITAV K.GUPTA, D.N.PATEL

body2018
ORDER : D.N. PATEL, J. I.A. No. 9616 of 2017 : 1. This interlocutory application has been preferred under Section 5 of the Limitation Act for condonation of delay of 59 days in preferring this Letters Patent Appeal. 2. Having heard learned counsels for both the sides and looking to the reasons stated in this, interlocutory application, especially in paragraph Nos.5 and 6, there are reasonable reasons for condonation of delay. We, therefore, condone the delay of 59 days in preferring this Letters Patent Appeal. 3. LA. No. 9616 of 2017 is, therefore, allowed and disposed of. L.P.A. No. 618 of 2016 : 1. This Letters Patent Appeal has been preferred by the original petitioner, being aggrieved and feeling dissatisfied by the judgment and order dated 16th September, 2016 passed in W.P. (S) No.3144 of 2016. The writ petition was preferred by this appellant for getting compassionate appointment, which was dismissed by the learned Single Judge and, hence, this Letters Patent Appeal has been preferred by the original petitioner. Reasons: 2. Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that husband of this appellant, who was serving with the respondents, expired on 10th September, 1991. 3. This appellant had preferred an application for getting compassionate appointment in the year 1991. The said application was rejected by the District Level Committee for compassionate appointment mainly on the ground that after 20 years in the year 2011, the very purpose of compassionate appointment or has been frustrated and even otherwise also, as per Rules female candidate should have minimum qualification of 8th Standard pass, which this appellant was not possessing. This appellant is illiterate and, hence also, she cannot be appointed even as Class-IV employee. 4. It further appears that earlier this appellant had preferred an application for compassionate appointment for her son, which was rejected by the respondents on 9th February, 2004. This order has never been challenged neither by this appellant nor by her son. Thus, the order dated 9th February, 2004 has attained its finality. 5. It ought to be kept in mind that compassionate appointment cannot be claimed as a matter of right. Public employment cannot be given without public advertisement and without giving any opportunity to the public at large. Thus, the order dated 9th February, 2004 has attained its finality. 5. It ought to be kept in mind that compassionate appointment cannot be claimed as a matter of right. Public employment cannot be given without public advertisement and without giving any opportunity to the public at large. Compassionate appointment is an exception to Article 14 to be read with Article 16 of the Constitution of India. No compassionate appointment can be given, even as Class-IV employee, if the legal heir of the deceased employee is not possessing minimum qualification. This aspect of the matter has been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant. 6. It further appears from the facts of the case that after the year 1991, period of more than 25 years has lapsed. Thus after quarter of century, no compassionate appointment can be given by the respondents because the very purpose of compassionate appointment has been frustrated by now. 7. It has been held by the Hon'ble Supreme Court 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 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 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) 8. 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) 8. It has been held by the Honble Supreme Court 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 into 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 family suffers financial 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. 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) 9. It has been held by the Hon'ble Supreme Court in the case of MGB Gramin Bank v. Chakrawarti Singh, reported in (2014) 13 SCC 583 , in paragraph 6, which reads 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 breadearner. 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) 10. It has been held by the Hon'ble Supreme Court in the case of State of Gujarat and another v. Chitraben, reported in (2015) 14 SCC 574 , in paragraphs 8 and 9, which read as under: "8. It is improper to keep such a case pending for years. (Emphasis supplied) 10. It has been held by the Hon'ble Supreme Court in the case of State of Gujarat and another v. Chitraben, reported in (2015) 14 SCC 574 , in paragraphs 8 and 9, which read as under: "8. A perusal of Rule 3(ii) indicates, that to be eligible for appointment by direct recruitment against Class IV posts, the candidate concerned should possess the "Secondary School Certificate". It is therefore apparent, that eligibility for appointment on compassionate grounds, under resolution dated 10.3.2000, after 16.3.2005 (when the aforesaid notification in respect of recruitment to Class IV posts was issued), requires to possess the qualification stipulated therein i.e. "Secondary School Certificate" qualification. 9. It is not a matter of dispute, that the respondent has possessed only the qualification of IVth standard, and does not possess the qualification of "Secondary School Certificate" examination, as has been postulated in Rule 3(ii) of the Notification dated 16.3.2005. It is therefore imperative for us to conclude, that the respondent was not qualified for appointment against Class IV posts, when her husband died in harness on 13.6.2006. When the respondent applied for appointment on compassionate grounds on 17.7.2006, it was necessary for her, to fulfil the qualification stipulated in the Notification dated 16.3.2005. Since, admittedly the respondent did not fulfil the aforesaid qualification, she was not eligible to claim appointment on compassionate grounds, under resolution dated 10.3.2000." (Emphasis supplied) 11. In view of the aforesaid decisions, compassionate appointment cannot be given at any time. It ought to be given at the earliest because the very purpose of compassionate appointment is to support the family of the deceased employee. Compassionate appointment is not one of the methods to generate employment after 25 long years. No compassionate appointment can be given to the legal heirs of the deceased employee. 12. It further appears from the facts of the case that earlier this appellant had preferred an application for getting compassionate appointment for her son. This application was rejected on 9th February, 2004 by the respondents. This order was accepted by this appellant and never challenged in any writ petition or in any proceeding. Thus, no error has been committed by the learned Single Judge while dismissing W.P.(S) No. 3144 of 2016 vide-judgment and order dated 16th September, 2016. This application was rejected on 9th February, 2004 by the respondents. This order was accepted by this appellant and never challenged in any writ petition or in any proceeding. Thus, no error has been committed by the learned Single Judge while dismissing W.P.(S) No. 3144 of 2016 vide-judgment and order dated 16th September, 2016. We see no reason to take any other view than what is taken by the learned Single Judge. Hence there is no substance, this Letters Patent Appeal is, hereby, dismissed. 13. In view of the final order passed in the Letters Patent Appeal, I.A. No. 9622 of 2017 is, hereby, also dismissed. Appeal dismissed.