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2020 DIGILAW 1066 (JHR)

Imilia Beck v. State of Jharkhand

2020-11-10

RAVI RANJAN, S.N.PRASAD

body2020
JUDGMENT : 1. The matter has been heard with the consent of learned counsel for the parties through video conferencing. There is no complaint about any audio and visual quality. The instant intra-court appeal has been listed under the heading 'For Orders' with defects. This Court has perused the office note containing the stamp report pointing out the defects. This Court has granted time vide order dated 29.06.2020 to remove the defects, in pursuant thereto, the defects have been removed, save and except, the defect nos. 3 and 10. Subsequently, the defect no. 3 has been removed as per the time granted by this Court vide order dated 02.11.2020 but the defect no. 10 has not been removed. Learned counsel for the appellant has prayed to ignore the aforesaid defect. This Court has perused the defect no. 10 which pertains to filing of typed copy of page nos. 20 and 27, since the same has not been filed in the second set of memo. This Court has travelled to page nos. 20 and 27. After finding it readable, the same is ignored. Accordingly, the defect no. 10 as pointed out by the office, is ignored. Learned counsel for the parties have agreed to address the Court on the issue of limitation as also on merit. I.A. No. 4768 of 2019 This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 42 days in preferring this Letters Patent Appeal. Heard. In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellant was prevented by sufficient cause in preferring the appeal within the period of limitation. Accordingly, I.A. No. 4768 of 2019 is allowed and delay of 42 days in preferring the appeal is condoned. L.P.A. No. 681 of 2018 This appeal has been heard for its final disposal at this stage on consent being given by the parties. 2. The instant intra-court appeal is directed against the order/judgment dated 25.08.2018 passed by the learned Single Judge of this Court in W.P.(S) No. 1646 of 2016, whereby and whereunder, the writ petition has been dismissed by declining to interfere with the order dated 28.04.2015, by which, the claim of the daughter of the writ petitioner for appointment on compassionate ground, has been rejected. 3. 3. The brief facts of the case are required to be referred herein which reads as hereunder:- The husband of the writ petitioner, namely, Salil Kumar Tirkey who was working as Jeep Driver in the office of Child Development Project Officer, Rania, Ranchi, has died in harness on 21.09.1992. The writ petitioner, thereafter, had made a representation for disbursement of post death benefit of her husband and further to provide employment on compassionate ground but when the aforesaid grievance has not been redressed, she has preferred a writ petition before the Hon'ble Patna High Court at its Ranchi Bench by filing a writ petition being C.W.J.C. No. 2460 of 1996(R) praying therein to pay all legal dues on account of death of her husband and further to provide employment on compassionate ground. The aforesaid writ petition was disposed of vide order dated 13th September, 1996 directing the respondent nos. 2 and 3 to pay all the post death dues to the petitioner within a period of three months from the date of receipt/production of a copy of the order. Respondent No. 3 has further been directed to consider the case of the petitioner for appointment on compassionate ground by taking a decision in accordance with Law. According to the writ petitioner, a representation was filed in pursuant to the order passed by the Hon'ble Patna High Court in C.W.J.C. No. 2460 of 1996(R) but only the post death benefit was paid and no decision for appointment on compassionate ground was taken rather the writ petitioner was orally asked to wait till her daughter attains majority. The writ petitioner upon aforesaid assurance has not chosen to file the contempt application for non-compliance of part of the order passed in C.W.J.C. No. 2460 of 1996(R). In the meanwhile, the daughter of the writ petitioner, namely, Renu Tirkey whose date of birth is 21.02.1987 has attained its majority and as such, an application was filed for her appointment in prescribed proforma on 20.05.2013. In the meanwhile, the daughter of the writ petitioner, namely, Renu Tirkey whose date of birth is 21.02.1987 has attained its majority and as such, an application was filed for her appointment in prescribed proforma on 20.05.2013. The respondents-authorities have not taken any decision on the said application which led the writ petitioner to approach before this Court by filing another writ petition being W.P.(S) No. 3322 of 2013 which was disposed of vide order 31.10.2013 by the learned Single Judge of this Court by giving direction to the respondent to decide the representation of the petitioner within six weeks from the date of receiving/production of a copy of the order. The respondents-authorities have passed an order rejecting the claim of the writ petitioner which is impugned before the writ court on the ground that the daughter of writ petitioner was minor at the time of death of the deceased employee and there is much delay from the date of death of the bread earner i.e., the husband of the writ petitioner. The aforesaid order was challenged before the writ court in W.P.(S) No. 1646 of 2016, wherein, the writ court has declined to interfere with the impugned decision which is under challenge in this intra-court appeal. 4. The contention of the learned counsel for the appellant-writ petitioner that no fault lies upon the writ petitioner rather it is the respondents who have committed delay and laches in providing employment in favour of the writ petitioner even in spite of the order passed by the Hon'ble Patna High Court in C.W.J.C. No. 2460 of 1996(R). However, in the meanwhile, the daughter of the writ petitioner since has attained its majority and as such, a fresh application was filed for consideration of her case for appointment on compassionate ground but the same has also been rejected on the pretext of delay from the date of death of the deceased employee, as such, according to the writ petitioner, if the appointment would have been granted in pursuant to the order passed by the writ court in C.W.J.C. No. 2460 of 1996(R), the question of such delay would not have arisen and therefore, for the laches committed on the part of the authority, the writ petition may not be made to suffer. 5. 5. While on the other hand, learned counsel appearing for the respondent-State of Jharkhand has submitted that the very purport and spirit of the appointment on compassionate ground is to provide immediate relief to the dependents of the bread earner and admittedly herein, the death was on 21.09.1992 and as such, the State authority by taking into consideration the long lapse of time from the date of death, has rightly rejected the aforesaid claim of the writ petitioner. So far as the direction passed by the writ court in C.W.J.C. No. 2460 of 1996(R) is concerned, it has been contended by the learned counsel appearing for the State that if the part of the order has not been complied with, the writ petitioner ought to have filed a contempt application and should not have waited for such a long delay and therefore, she now cannot put blame upon the State authority about the laches even accepting that there is laches but the proper course for the writ petitioner was to file a contempt case for noncompliance of the part of the order but having not, done so, this point is not available for the writ petitioner to be agitated after such a long delay. 6. This Court, after having heard the learned counsel for the parties and after going through the material available on record as also the finding recorded in the impugned order, deem it fit and proper to refer certain authoritative pronouncements of the Hon'ble Apex Court in the matter of appointment on compassionate ground. In Umesh Kumar Nagpal vs. State of Haryana and Others reported in (1994)4 SCC 138 : 1995(1) PLJR (SC) 102, 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. 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 rather it is for the reason that a death of an employee in harness may take away the source of livelihood of the family. Thus, 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 Jagdish Prasad vs. 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 Haryana State Electricity Board vs. 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 breadearning Government employee. In Haryana State Electricity Board vs. 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 breadearning Government employee. In State of U.P. and Others vs. Paras Nath reported in AIR 1998 SC 2612 : 1998 (2) PLJR (SC) 1 the Hon'ble Apex Court held that 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. It was further observed that none of these considerations can operate while the application is made after a long period of time. In Commissioner of Public Instructions and Others vs. 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 Articles 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 hereinabove, 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. 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 Articles 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. Since compassionate appointment is deviation from the constitutional mandate contemplated by Articles 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. Further, the issue fell for consideration about applicability of the scheme governing the field for consideration of a case for appointment on compassionate ground in Canara Bank and Anr. vs. M. Mahesh Kumar, (2015) 7 SCC 412 : 2015 (3) JLJR (SC) 21, wherein the question which fell for consideration was whether the scheme passed in 2005 providing for ex gratia payment or the scheme then in vogue in 1993 providing for compassionate appointment would be applicable in the case (para-12). The issue about applicability of the scheme has been considered by the Hon'ble Apex Court in another judgment rendered in State Bank of India & Ors. vs. Jaspal Kaur, reported in (2007) 9 SCC 571 : 2007 (2) JLJR (SC) 35, wherein it has been laid down that the claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim. The Hon'ble Apex Court applying the principle laid down in the case of State Bank of India & Ors. vs. Jaspal Kaur (supra) has considered the factual aspect in the case of Canara Bank and Anr. vs. M. Mahesh Kumar (supra), wherein the fact leading to the said case was that the father of the dependent died on 10.10.1998 while he was serving as a clerk in the bank and the dependent has applied timely for compassionate appointment as per the scheme "Dying in Harness Scheme" dated 08.05.1993 which was in force at that time. The bank has rejected the dependent's claim on 30.06.1999 recording that there are no indigent circumstances for providing employment to the dependent. Again on 07.11.2001, the bank sought for particulars in connection with the issue of the dependent's employment. In the light of the principles laid down in the case of State Bank of India & Ors. vs. Jaspal Kaur (supra) the cause of action to be considered for compassionate appointment arose when circular no. 154 of 1993 dated 08.05.1993 was in force. In the light of the principles laid down in the case of State Bank of India & Ors. vs. Jaspal Kaur (supra) the cause of action to be considered for compassionate appointment arose when circular no. 154 of 1993 dated 08.05.1993 was in force. Thus, as per the judgment referred in State Bank of India & Ors. vs. Jaspal Kaur (supra), the claim cannot be decided as per 2005 scheme providing for ex gratia payment. The circular dated 14.02.2005 being an administrative or executive order cannot have retrospective effect so as to take away the right accrued to the respondent as per circular of 1993. It further requires to refer the Circular basis upon which application has been made by the writ petitioner, the dependent, for consideration of her case for appointment on compassionate ground which is a circular issued by the State of Bihar through its Personnel and Administrative Reforms Department dated 05.10.1991, which had been adopted by the State of Jharkhand after its bifurcation, which contains a provision for appointment on compassionate ground to be provided in favour of the dependent of the deceased employee who dies in harness. Another Circular was issued on 19.05.1992 by the State of Bihar through its Personnel and Administrative Reforms Department wherein issue crept up with respect to the fact that if at the time of death of the deceased employee the dependent, either son or daughter, etc., was minor and after subsequent years becomes major, can his or her case be considered. The Government has taken decision that such case cannot be considered and it should be rejected. In continuation to the Circular dated 19.05.1992 another Circular was issued by the Personnel Administrative Reforms Department and Rajbhasha of the State of Bihar dated 01.11.1993 reiterating the same decision as has been decided in the Circular dated 19.05.1992 as referred above. It requires to refer both the Circulars dated 19.05.1992 and 01.11.1993 having been adopted by the State of Jharkhand after its creation w.e.f. 15.11.2000 in pursuance to the provision as conferred in Section 85 of the State Reorganization Act, 2000. It requires to refer both the Circulars dated 19.05.1992 and 01.11.1993 having been adopted by the State of Jharkhand after its creation w.e.f. 15.11.2000 in pursuance to the provision as conferred in Section 85 of the State Reorganization Act, 2000. It is, thus, evident that there is no provision under the scheme floated by the State of Jharkhand to provide appointment on compassionate ground in favour of a dependent who had been found to be minor at the time of death of the deceased employee as has been settled by Hon'ble Apex Court in the judgments referred hereinabove that the appointment on compassionate ground cannot be claimed as a matter of right. The same is to be provided in terms of the provision of the scheme or the rules which is in vogue or the circular applicable on the, basis of which the concerned is making claim for appointment on compassionate ground. No such provision has been given to provide appointment on compassionate ground in favour of the dependent who at the time of death of the employee is found to be minor. 7. The fact of the case herein is that admittedly the husband of the writ petitioner had died on 21.09.1992. A Representation has been filed for disbursement of the post death benefit as also the appointment on compassionate ground but having not considered so, a writ petition was filed before the Patna High Court at its Ranchi Bench being C.W.J.C. No. 2460 of 1996(R), wherein, the following direction was passed:- "Learned counsel for the petitioner is permitted to correct the description of respondent no. 2. The petitioner has filed this writ application for issue a direction to the respondents to pay all the death dues to the petitioner and also provide employment to him on compassionate ground. The husband of the petitioner was employed as a driver and while he was posted under respondent no. 3 died on 21.09.1992 in harness. Her grievance is that although she has filed a petition for appointment on compassionate ground in the year 1993 (annexure 5) before the respondent no. 2 but no action has been taken as yet. Her further grievance is that though her husband died in the year 1992 in harness but no death dues has been paid to her as yet. Her grievance is that although she has filed a petition for appointment on compassionate ground in the year 1993 (annexure 5) before the respondent no. 2 but no action has been taken as yet. Her further grievance is that though her husband died in the year 1992 in harness but no death dues has been paid to her as yet. Since the husband of the petitioner died in the year 1992, this application is disposed of directing the respondent no. 2 and 3 to pay all the death dues to the petitioner within a period of three months from the date of receipt/production of a copy of this order. Respondent No. 3 is further directed to consider the case of the petitioner for appointment on compassionate ground and dispose it of by a reasoned order within the same time." In pursuant to the aforesaid order as quoted above, the post death benefit has been paid but no decision was communicated to the writ petitioner about the appointment on compassionate ground. It is the further admitted fact herein that against the alleged non-compliance of the order passed in C.W.J.C. No. 2460 of 1996(R), no contempt case was filed before this Court, thereafter, a representation has been filed on 20.05.2013 for seeking direction for consideration of appointment of daughter of the writ petitioner on compassionate ground since in the meanwhile her daughter has become major. The writ petitioner being the mother of the applicant for whom the direction has been sought for appointment on compassionate ground, admittedly, was minor at the time of death of the deceased employee i.e., about six years. As has been referred hereinabove about the circular dated 19.05.1992 and 01.11.1993, wherein, it was decided not to provide appointment to the minor dependent in case of death of the bread-earner. 8. As has been referred hereinabove about the circular dated 19.05.1992 and 01.11.1993, wherein, it was decided not to provide appointment to the minor dependent in case of death of the bread-earner. 8. This Court after considering the aforesaid circulars dated 19.05.1992 and 01.11.1993, is of the view that the age of the candidates who are seeking appointment on compassionate ground would be relevant at the time of death of the deceased employee, admittedly, herein the deceased employee has died on 21.09.1992 and on that date, the daughter of the writ petitioner was having six years of age and therefore, in view of the aforesaid policy decision of the State dated 19.05.1992 and 01.11.1993, no direction can be passed upon the State authority to consider the case of the daughter of the writ petitioner for appointment on compassionate ground. 9. So far as the ground agitated about the alleged laches committed on the part of the State authority by not taking any decision in pursuant to the order passed by the Patna High Court at its Ranchi Bench in C.W.J.C. No. 2460 of 1996 (R), even accepting the aforesaid fact but the question is that when the part of the aforesaid direction has not been complied with, it was incumbent upon the writ petitioner to immediately move before the contempt court for non-compliance of the order passed by the writ court but no such application has been filed rather the writ petitioner has been waited for about 17 years from the date of the Order passed in C.W.J.C. No. 2460 of 1996 (R), but the question is:- "as to whether after such a long delay of about 17 years from approaching the Court in 2013 by filing the writ petition being W.P.(S) No. 3322 of. 2013, can appointment on compassionate ground be provided after lapse of 17 years"? The answer of this Court would be in negative on the basis of the settled position of law to the effect that the appointment on compassionate ground is to be provided immediately to provide immediate relief to the family which has came to penury due to sudden demise of the bread earner. Therefore, if delay is there in appointment, the very spirit of appointment will be frustrated. 10. Therefore, if delay is there in appointment, the very spirit of appointment will be frustrated. 10. We, have also gone across the finding recorded by the learned Single Judge and has found therefrom that the fact about considering the appointment on compassionate ground as also the period of delay and the age of the daughter of the writ petitioner have been taken into consideration, therefore, on the basis of the discussion made hereinabove, we are of the considered view that no interference is required with the impugned order passed. 11. In the result, the instant appeal fails and hence, is dismissed.