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2019 DIGILAW 1916 (JHR)

Ranjeet Kumar Sharma v. State of Jharkhand

2019-11-26

RAVI RANJAN, SUJIT NARAYAN PRASAD

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JUDGMENT : I.A. No.4311 of 2018:- The instant intra-court appeal has been listed under the heading for ‘Orders’ for passing appropriate order in interlocutory application being I.A. No.4311 of 2018 which has been filed to condone the delay of 241 days in preferring the instant appeal. 2. This Court after taking into consideration the reason assigned in the instant application as also considering the fact that instead of dismissing the appeal on the ground of limitation it would be appropriate in the ends of justice to decide the appeal on its merit, accordingly, the delay in filing the appeal is condoned. 3. In the result, the instant interlocutory application is disposed of. L.P.A. No.247 of 2018:- 4. Learned counsel for the parties have agreed to advance their arguments on merit, in that view, this matter has been heard by this Court. 5. The instant intra-court appeal has been preferred against the order dated 11.08.2017 passed in W.P.(S) No.3826 of 2016 whereby and where under the claim of the appellant for appointment to Class-III post on compassionate ground has been rejected. 6. The brief facts of the case of the appellant is that his father died in harness on 08.09.2000 while working as Assistant Teacher in Primary School, Nageshwarbag, Rajmahal, Sahibganj. The appellant, being the son, has made an application for appointment on compassionate ground and as per the decision taken by the District Compassionate Committee on 25.08.2004, the appellant has been recommended to be appointed on the post of Assistant Teacher but instead of appointing him as Assistant Teacher, the appointment has been made in the Class-IV post. 7. The case of the appellant is that the other dependents of the deceased employees have been appointed in the Class-III posts without taking into consideration the predicament of the appellant and even though there is recommendation of the District Compassionate Committee to appoint him as Assistant Teacher, he has not been appointed on Class-III post rather appointed to Class-IV post. The case of the appellant is that the other dependents of the deceased employees have been appointed in the Class-III posts without taking into consideration the predicament of the appellant and even though there is recommendation of the District Compassionate Committee to appoint him as Assistant Teacher, he has not been appointed on Class-III post rather appointed to Class-IV post. The case of the appellant is that the other similarly situated have approached to this Court against non-consideration of their claim and upon the direction passed by this Court, they have been appointed as Assistant Teacher, therefore, it is a clear cut case of discrimination and as such, the appellant has approached to this Court under Article 226 of the Constitution of India but the Writ Court has dismissed the writ petition against which the present intra-court appeal has been preferred. 8. The learned State counsel has argued out the case vehemently while submitting that there is no error in the order by virtue of the fact that the appellant cannot claim appointment on compassionate ground as a matter of right and considering the vacancy position, the appellant has been appointed to Class-IV cadre, has accepted the same and after eleven years, writ petition has been filed, therefore, the Writ Court after taking into consideration these aspects of the matter has dismissed the writ petition, hence, the order impugned needs no interference. 9. This Court, after having heard learned counsel for the parties and on appreciation of their rival submissions, has found from the admitted fact that the appellant has been appointed on compassionate ground under Class-IV cadre although the recommendation has been made to be appointed as Assistant Teacher and contrary to the said recommendation he has been appointed under Class-IV cadre, therefore, he has been subjected to discrimination in view of the fact that the others have been appointed as Assistant Teacher as also under Class-III cadre. 10. The position of law is clear that the provision of Jharkhand Primary School Appointment Rules, 2002 strictly prohibits appointment of Teacher on compassionate ground. 11. The appellant has been appointed under Class-IV cadre and now he claims to be appointed as Assistant Teacher or other Class-III posts after lapse of eleven years. 12. 10. The position of law is clear that the provision of Jharkhand Primary School Appointment Rules, 2002 strictly prohibits appointment of Teacher on compassionate ground. 11. The appellant has been appointed under Class-IV cadre and now he claims to be appointed as Assistant Teacher or other Class-III posts after lapse of eleven years. 12. This Court before entering into the legality and propriety of the impugned order, deem it fit and proper to refer certain authoritative pronouncements of Hon’ble Apex Court in the matter of appointment on compassionate ground: In the case of Umesh Kumar Nagpal Vrs. State of Haryana and Others reported in (1994) 4 SCC 138 wherein it has been held that 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 dependents 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 dependents 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 held by the deceased, 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 only if it is satisfied that the family will not be able to meet the crisis, a job is to be offered to the eligible member of the family. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and only if it is satisfied that the family will not be able to meet the crisis, a job is to be offered to the eligible member of the family. In the case of Jagdish Prasad Vrs. State of Bihar and Another reported in (1996) 1 SCC 301 , Hon'ble Apex Court, while considering the object of compassionate appointment held that the object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. In the case of Haryana State Electricity Board Vrs. Naresh Tanwar and Another reported in (1996) 8 SCC 23 the Hon'ble Apex Court declined to grant relief to the dependent of an employee who was minor at the time of death of the bread earning Government employee. In the case of State of U.P. and Others Vrs. Paras Nath reported in AIR 1998 SC 2612 the Hon'ble Apex Court held that 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. It was further observed that none of these considerations can operate while the application is made after a long period of time. In the case of Commissioner of Public Instructions and Others Vrs. K. R. Vishwanath reported in (2005) 7 SCC 206 the Hon'ble Apex Court, after taking into consideration its various judgments, reiterated that the appointment to the public service can only be made on the touchstone of Article 14 or 16 of the Constitution and compassionate appointment is an exception to general constitutional mandate in the interest of justice under peculiar circumstances. It was further observed that where law prescribes limitation for making an application for compassionate appointment, it has to be adhered to. From the law laid down by the Hon'ble Apex Court in various judgments referred herein above, it is settled proposition that compassionate appointment cannot be considered to be a source of recruitment or another mode of recruitment to government / public service. From the law laid down by the Hon'ble Apex Court in various judgments referred herein above, it is settled proposition that compassionate appointment cannot be considered to be a source of recruitment or another mode of recruitment to government / public service. The object and purpose of compassionate appointment for the dependent of the deceased-Government servant is to provide immediate financial assistance to the family whose sole bread earner died leaving the family in lurch. The purpose is to enable the family to overcome its immediate financial needs. The compassionate appointment cannot be given as a matter of course, and depends upon various factors, including the financial condition of the family of the deceased and other relevant factors. Since compassionate appointment is deviation from the constitutional mandate contemplated by Article 14 and 16 of the Constitution of India, which permits employment providing equal and fair opportunity to all the eligible persons, it is necessary that the compassionate appointment is regulated by law / rules so as not to nullify the constitutional spirit. Reference of judgment rendered in the cases of State of Rajasthan vs. Umrao Singh, reported in (1994) 6 SCC 560 , wherein at paragraph-8 it has been held, which reads hereunder as: “8. Admittedly, the respondent’s father died in harness while working as Sub-Inspector, CID (Special Branch) on 16-3-1988. The respondent filed an application on 8-4-1988 for his appointment on compassionate ground as Sub-Inspector or LDC according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 14-12-1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of “endless compassion’. Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case.” 13. Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case.” 13. This Court after applying the aforesaid position of law and taking into consideration the admitted fact in this case that the appellant has been appointed on compassionate ground under the Class-IV cadre immediately after the death of the bread earner and has accepted the same and after lapse of eleven years the application has been filed for shifting him from Class-IV to Class-III post or Teacher on the ground that certain candidates have been appointed on compassionate ground under Class-III post and some of them have also been appointed as Assistant Teacher. 14. The question herein is that when there is absolute embargo under the Jharkhand Primary School Appointment Rules, 2002 for appointment on compassionate ground, there cannot be a direction to appoint the dependent as Assistant Teacher contrary to the provision of law. 15. So far as the contention of the appellant that certain dependents have been appointed under Class-III cadre, that cannot give any aid to the appellant on the ground of principle of negative equality for the reason that Article 14 envisages positive equality not the negative equality, reference in this regard be made to the judgment rendered in the case of Basawaraj and Anr. vs. Special Land Acquisition Officer, reported in (2013) 14 SCC 81 para-8 and Chaman Lal vs. State of Punjab and Ors., reported in AIR 2014 SC 3640 para-15, para-8 & para-15 respectively reads hereunder as:- “8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. 15. Moreso, it is also settled legal proposition that Article 14 does not envisage for negative equality. In case a wrong benefit has been conferred upon someone inadvertently or otherwise it may not be a ground to grant similar relief to others. This Court in Basawaraj & Anr. vs. The Spl. Land Acquisition Officer, AIR 2014 SC 746 considered this issue and held as under: “It is settled legal proposition that Article 14 of the Constitution is not meant to ….......................................................................................................administration impossible.” 16. So far as the other candidates are concerned who have been appointed under the Class-III cadre, this Court is of the view that when the appellant has accepted the appointment under Class-IV cadre and the day when he has accepted, the very purpose and spirit of the appointment on compassionate ground has been achieved. 17. So far as the other candidates are concerned who have been appointed under the Class-III cadre, this Court is of the view that when the appellant has accepted the appointment under Class-IV cadre and the day when he has accepted, the very purpose and spirit of the appointment on compassionate ground has been achieved. 17. Herein, the appellant after eleven years from the date of acceptance is seeking a direction from this Court to appoint him under the Class-III cadre, the same cannot be extended to the appellant for the reason that when the purpose and object of appointment on compassionate ground has already been achieved, there is no reason to direct the authority to appoint him under Class-III cadre and if such direction would be passed since the appointment on compassionate ground is in the teeth of Article 14 and 16 of the Constitution of India, it will lead to frustrating the very object and spirit of the appointment on compassionate ground. 18. This Court has gone across the order passed by the Writ Court and found there from that the purpose and object of the appointment on compassionate ground has been taken into consideration, apart from that the issue of acceptance of appointment on compassionate ground and agitating the issue for appointment after lapse of eleven years has also been taken into consideration. 19. In that view of the matter, the order impugned requires no interference by this Court, accordingly, the instant appeal fails and stands dismissed.