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2020 DIGILAW 53 (JHR)

Ritesh Ranjan Kumar v. State of Jharkhand

2020-01-13

RAVI RANJAN, SUJIT NARAYAN PRASAD

body2020
JUDGMENT : 1. These two intra court appeals are against the order dated 25.08.2018 passed in W.P.(S) No.2895 of 2016 and W.P.(S) No.2660 of 2016 by learned Single Judge of this Court, whereby and where under the writ petitions seeking quashing of the decision of the authority rejecting the claim for appointment in Class-III post on compassionate ground, has been declined to be interfered with by dismissing the writ petitions. 2. At the outset, it requires to refer herein that along with these two appeals, two other appeals being L.P.A. No.624 of 2018 and L.P.A. No.629 of 2018 have been listed for analogous hearing but this Court, in course of hearing has found certain distinguishable facts in L.P.A. No.624 of 2018 and L.P.A. No.629 of 2018, therefore, has decided to separate these two appeals from the L.P.A. No.632 of 2018 and L.P.A. No.640 of 2018 and posted on other date for seeking some clarification, as would appear from the order which reads here under as: “Let affidavit be filed on behalf of State showing that what was the vacancy position of the concerned district on the date when consideration was being done with respect to Mr. Pramod Kumar and why at that point of time, the cases of these appellants could not be considered for appointment and also what was the vacancy position when the cases of the appellants were being considered. Post these cases on 10.02.2020.” 3. This Court, deem it fit and proper to enumerate the factual aspects before entering into the legality and propriety of the decision of the learned Single Judge which reads hereunder as: Since these appeals are being decided by passing common order, therefore, the fact pertaining to both the cases is being referred herein separately. L.P.A. No.632 of 2018 The father of the appellant namely late Bhawani Prasad Sinha died in harness on 20.06.2005 while working as Forest Guard in Koderma Forest Division. The appellant after the death of his father made an application for consideration of his candidature for appointment on compassionate ground. The case of the petitioner was considered in the meeting dated 27.12.2005 by the District Compassionate Appointment Committee, Koderma, wherein it was decided to appoint the petitioner and other dependants of the deceased employee including Shri Pramod Kumar on Class-IV posts as orderly in the office of Forest Division, Koderma. The case of the petitioner was considered in the meeting dated 27.12.2005 by the District Compassionate Appointment Committee, Koderma, wherein it was decided to appoint the petitioner and other dependants of the deceased employee including Shri Pramod Kumar on Class-IV posts as orderly in the office of Forest Division, Koderma. L.P.A. No.640 of 2018 The father of the appellant namely late Tara Shankar Rawat died in harness on 19.03.2004 while working as Clerk in the office of District Establishment, Deputy Collector, Koderma. The appellant made an application for consideration of his candidature for appointment on compassionate ground and in the meeting held on 27.12.2005 of the District Compassionate Appointment Committee, Koderma, it was decided to appoint the appellant and other persons on Class-IV posts as orderly in the office of the Civil Surgeon-cum-Chief Medical Officer, Koderma. Both the appellants joined their services and started discharging their duties. 4. The grievance of the appellants is that one Sri Pramod Kumar, who was also appointed on Class-IV post, as per the decision of the District Compassionate Appointment Committee, Koderma dated 27.12.2005, who joined the duty but approached this Court by filing writ petition being W.P.(S) No.821 of 2006 which was disposed of on 08.08.2012 with liberty to the petitioner to make a representation before the Deputy Commissioner-cum-Chairman, District Compassionate Appointment Committee, Koderma, who, in turn, was directed to take appropriate decision in accordance with law. The said Pramod Kumar made due representation in pursuance to the order passed by this Court in W.P.(S) No.821 of 2006 but the claim had been rejected for his appointment to the suitable post of Clerk which was assailed by him by filing another writ petition being W.P.(S) No.7519 of 2012 which was allowed vide order dated 06.07.2015. The matter was remitted before the respondent no.2 to consider the claim for compassionate appointment on Class-III post based on his qualification by taking into consideration the order passed by this Court in C.W.J.C No.962 of 1999 in the case of Digvijay Kumar Singh vs. State of Bihar and Ors. The matter was remitted before the respondent no.2 to consider the claim for compassionate appointment on Class-III post based on his qualification by taking into consideration the order passed by this Court in C.W.J.C No.962 of 1999 in the case of Digvijay Kumar Singh vs. State of Bihar and Ors. as also the fact that in the similar situation another person namely Shiva Nand Jha, though initially appointed in Class-IV post had been recommended for being appointed in Class-III post after giving opportunity of hearing to the petitioner and thereafter pass a reasoned order within a period of six weeks from the date of receipt/production of copy of the order. It is the case of the appellants that ultimately the said Pramod Kumar vide decision dated 26.02.2016 has been appointed in Class-III post. The appellant namely Ritesh Ranjan Kumar (L.P.A. No.632 of 2018) for the first time made representation on 15.03.2016 for reconsideration of his appointment from Class-IV to Class-III on compassionate ground while the appellant Sumit Kumar Rawat (L.P.A. No.640 of 2018) made representation on 04.03.2016 as would appear from Annexure-8 and 7 respectively to the writ petition filed by them. The respondent authorities have taken decision by rejecting the claim of the writ petitioners-appellants for reconsideration of their appointment from Class-IV to Class-III post vide order dated 31.03.2016 and 16.03.2016 annexed as Annexures-9 and 8 respectively to the writ petitions. The said decisions of the authority was the subject matter of the writ Court which has been dismissed by the learned Single Judge of this Court, which is the subject matter of the present intra court appeals. 5. Mr. The said decisions of the authority was the subject matter of the writ Court which has been dismissed by the learned Single Judge of this Court, which is the subject matter of the present intra court appeals. 5. Mr. Anil Kumar Sinha, learned counsel for the appellants has tried to make out a case of discrimination, since according to him the case of Sri Pramod Kumar was considered by the District Compassionate Committee in its decision dated 16.01.2006, in pursuance thereto, the said Pramod Kumar along with the appellants were recommended to be appointed in Class-IV post as orderly but the said Pramod Kuamr approached to this Court by filing writ petition being W.P.(S) No.821 of 2006 which was disposed of on 08.08.2012 whereby and whereunder the writ petition was disposed of with liberty upon him to make representation for its consideration, although the same was rejected vide decision as contained in Memo No.555 dated 12.11.2012 but subsequently the said order had been quashed and set aside by this Court in an order passed on 06.07.2015 in W.P.(S) No.7519 of 2012 and thereafter, the respondent authorities appointed the said Pramod Kumar in Class-III category vide decision dated 26.02.2016 and, as such, according to the appellants, their cases are similar to that of Pramod Kumar and as such, representations were filed for consideration of their cases in the like nature to that of the said Pramod Kumar and to provide appointment under the Class-III category, but the same have been rejected by the authorities on the ground by taking plea of a provision of scheme dated 01.12.2015, the same contains the provision about non-permissibility of change of the post or the cadre once the appointment has been made on the compassionate ground. The said order has been assailed before the learned Single Judge raising the specific plea of discrimination which hits the fundamental right guaranteed under Article 14 of the Constitution of India but the same has been dismissed, therefore, the said order is not sustainable in the eye of law since the fact about discrimination has not been taken into consideration in right perspective. 6. Mr. Jai Prakash, learned A.A.G for the State of Jharkhand in both these appeals have vehemently opposed the submission and defended the decision of the respondent authority as also the learned Single Judge. 6. Mr. Jai Prakash, learned A.A.G for the State of Jharkhand in both these appeals have vehemently opposed the submission and defended the decision of the respondent authority as also the learned Single Judge. He has submitted that the appointment on compassionate ground is purely on compassion, having no accrued right to the dependent of the deceased family rather the same is to be provided merely on compassion based upon the provision of scheme which is exception to Article 14 and 16 of the Constitution of India. He further submits by taking aid of the scheme which is operative in the field, which contains a provision that once the appointment on compassionate ground has been accepted, there cannot be change in the cadre or the post and as such, the appellants since have accepted the appointment of Class-IV post and not only that after ten years from the date of acceptance, for the first time in the year 2016, have made representations for change in their cadre from Class-IV to Class-III which is not permissible at all and hence the authorities while rejecting their claim, has committed no error as also the learned Single Judge. On the question of discrimination, submission has been made by him that the appellants cannot claim parity with the said Pramod Kumar as because the said Pramod Kumar approached to the Court of law in the year 2007 after accepting the order of appointment in the year 2006 while the appellants herein approached to the authority for the first time in the year 2016 by filing representations and when it was rejected, the writ petitions have been filed in the year 2016 i.e after lapse of ten years after the date of acceptance of offer of appointment and rendering their duties for the said period, hence there is no question of giving parity in favour of the appellants similar to that of the said Pramod Kumar. In view of such submission, the prayer has been made to dismiss the appeals. 7. This Court having appreciated the arguments and after going across the pleadings appended to the paper book, deem it fit and proper to refer the object and intent of appointment on the compassionate ground laid down by the Hon’ble Apex Court time to time as also the claim sought for by the appellants. In the case of Umesh Kumar Nagpal Vrs. 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 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 in view of 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 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. 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 died 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. 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. 8. 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. 9. 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. 10. 9. 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. 10. The State of Jharkhand has come out with a circular dated 05.10.1991 for consideration of candidature of one or the other dependants of the deceased family. The authorities have also come out with the another circular which was forwarded on 15.12.2011 which is in continuation to the circular dated 05.10.1991, specifically laying emphasis for implementation of the provision made under Condition No.9 (Ka and Kha) which provides that appointment, if made on any post, the second benefit would not be given or there will not be any change in the cadre or the post. The sole ground of the appellants in assailing the decision of the State authority or the learned Single Judge, is based upon the hostile discrimination and hence this Court has proceeded to examine the factual aspect related to the case of the said Pramod Kumar vis-a-vis the appellants herein. The case of the said Pramod Kumar was considered along with the appellants in the meeting of the District Compassionate Appointment Committee dated 16.01.2006 whereby and whereunder the Committee had taken decision to appoint the appellants along with the said Pramod Kumar in the Class-IV cadre, in pursuance thereto, Pramod Kumar as also the appellants accepted the appointment made on the basis of the recommendation of the Committee sometime in the year 2006 itself. The distinguishable fact in the case of Pramod Kumar vis-a-vis the appellants are that Pramod Kumar approached to this Court by filing writ petition under Article 226 of the Constitution of India vide W.P.(S) No.821 of 2006 seeking a direction for consideration of his case for appointment to Class-III post on the basis of his qualification and the learned Single Judge of this Court passed order on 08.08.2012 granting liberty to the said Pramod Kumar to make representation before the Deputy Commissioner-cum-Chairman, District Compassionate Appointment Committee for consideration of his case. The case of the said Pramod Kumar was considered but rejected vide decision as contained in Memo No.555 dated 12.11.2012 which had again been challenged in another round of litigation being W.P.(S) No.7519 of 2012 which was disposed of on 06.07.2015 by quashing and setting aside the decision dated 12.11.2012 remitting the matter for afresh consideration and in terms thereof, the said Pramod Kumar had been appointed in Class-III post but herein the appellants for the first time made representations before the authority seeking redressal of their grievance for appointing them in Class-III cadre after lapse of long period of time. The appellant to L.P.A. No.632 of 2018 submitted representation on 15.03.2016 and the appellant to L.P.A. No.640 of 2018 submitted representation on 04.03.2016. These two representations have been rejected in the year 2016 and thereafter the writ petitions have been filed in the year 2016. 11. Thus, it is evident that the said Pramod Kumar was conscious for his claim right from the year 2007 while the appellants agitated their grievance for the first time in the year 2016 i.e. after lapse of ten years. The implied meaning of the delay caused by the appellants is that once when said Pramod Kumar was provided with appointment in the Class-III post in the year 2016, it is only thereafter the writ petitions were filed by the appellants, the case of the appellants is not fit to be considered by showing any interference in the decision of the authorities as also the order passed by the learned Single Judge on two reasons. First, according to us, the appellants would be said to be Fence sitter. The meaning of Fence sitter is that the persons waiting for the litigation and when the result has come, then if the party approaches to the Court of law, in that situation the benefit would be said to be belated. It is also not in dispute that the fence sitter, cannot be allowed to get the benefit of judgment by invoking the jurisdiction of Court of law after lapse of long delay, this principle is subject to well recognized based in the form of delay and laches as well as acquiescence. It is also not in dispute that the fence sitter, cannot be allowed to get the benefit of judgment by invoking the jurisdiction of Court of law after lapse of long delay, this principle is subject to well recognized based in the form of delay and laches as well as acquiescence. Those persons who did not challenge the lawful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who have/had approached the Court earlier in time had succeeded in their efforts, then such employees cannot claim the benefit of the judgment rendered in the case of similarly situated persons be extended to them as because they are to be treated Fence sitters and caused laches and delays and/or acquiescence would be a valid ground to dismiss their claim. Here in the instant case, the appellants for the first time have approached the authority in the year 2016 as also to the Court below after lapse of ten years that too after seeing the result of the writ petition filed by the said Pramod Kumar and hence these appellants, according to our considered view will be treated to be Fence sitter and as such they cannot be allowed to claim the similar relief which has been extended in favour of said Pramod Kumar. In this context, reference of the judgment of Hon’ble Apex Court is required to be referred. The Hon’ble Apex Court in the case of State of Uttar Pradesh and Ors. vs. Arvind Kumar Srivastava and Ors. reported in (2015) 1 SCC 347 at paragraph 18 and 19 have been pleased to hold: “18 ……… In U.P. Jal Nigam v. Jaswant Singh reported in (2006) 11 SCC 464 where the issue was pertaining to entitlement of the employees of U.P. Jal Nigam to continue in service up to the age of 60 years. In Harwindra Kumar v. Chief Engineer, Karmik reported in (2005) 13 SCC 300 this Court had earlier held that these employees were in fact entitled to continue in service up to the age of 60 years. After the aforesaid decision, a spate of writ petitions came to be filed in the High Court by those who had retired long back. In Harwindra Kumar v. Chief Engineer, Karmik reported in (2005) 13 SCC 300 this Court had earlier held that these employees were in fact entitled to continue in service up to the age of 60 years. After the aforesaid decision, a spate of writ petitions came to be filed in the High Court by those who had retired long back. The question that arose for consideration was as to whether the employees who did not wake up to challenge their retirement orders, and accepted the same, and had collected their post-retirement benefits as well, could be given relief in the light of the decision delivered in Harwindra Kumar reported in (2005) 13 SCC 300 . The Court refused to extend the benefit applying the principle of delay and laches. It was held that an important factor in exercise of discretionary relief under Article 226 of the Constitution of India is laches and delay. When a person who is not vigilant of his rights and acquiesces into the situation, his writ petition cannot be heard after a couple of years on the ground that the same relief should be granted to him as was granted to the persons similarly situated who were vigilant about their rights and challenged their retirement. In para 7, the Court quoted from Rup Diamonds reported in (1989) 2 SCC 356 . In para 8, S.M. Kotrayya reported in (1996) 6 SCC 267 was taken note of. 19. Some other judgments on the same principle of laches and delay are taken note of in paras 9 to 11 which are as follows: (Jaswant Singh case reported in (2006) 11 SCC 464 , SCC pp. 469-70) “9. Similarly in Jagdish Lal v. State of Haryana reported in (1997) 6 SCC 538 this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542) ‘The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Union of India v. Virpal Singh Chauhan reported in (1995) 6 SCC 684 . In that case it was observed as follows: (SCC p. 542) ‘The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Union of India v. Virpal Singh Chauhan reported in (1995) 6 SCC 684 . The appellants’ desperate attempt to redo the seniority is not amenable to judicial review at this belated stage.’ 10. In Union of India v. C.K. Dharagupta reported in (1997) 3 SCC 395 it was observed as follows: (SCC p. 398, para 9) ‘9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi v. Union of India gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3-1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief.’ 11. In Govt. of W.B. v. Tarun K. Roy reported in (2004) 1 SCC 347 , Their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34) ‘34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in State of W.B. v. Debdas Kumar reported in (1991) Supp (1) SCC 138. The plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. The plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others there from who may be found to be entitled thereto by a court of law.’” Second reason that the appellants have accepted the offer of appointment as also rendered their duty for the period of ten years, meaning thereby they have already consummated the right of appointment on compassionate ground and not only accepted, rather satisfied for a period of ten years and thereafter have woke up and made demand similar to that of Pramod Kumar which cannot be extended in view of the judgment rendered by the Hon’ble Apex Court in the case 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 Jude 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.” 12. Merely because of the so-called eligibility, the learned Single Jude 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.” 12. This Court on the basis of the factual aspects and the legal position, as elaborately discussed hereinabove and after going across the finding recorded by the learned Single Judge, has also found there from that the pleading to the effect of existing of vacancies in Class-III posts has also not been established by the appellants and it is settled law that the appointment on compassionate ground since exception to the general recruitment which is to be done to provide immediate relief to the dependants of the bereaved family, cannot be granted in absence of vacancy. Therefore, this Court is of the view that the appellants have failed to establish their cases for showing interference either with the decision of the State authorities or by the learned Single Judge. 13. In the result, these appeals being devoid of merit, are dismissed.