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2021 DIGILAW 183 (MP)

Dharmendra Singh Tomar v. State of M. P.

2021-02-19

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. With the consent of the parties, the matter is finally heard. 1. The present petition has been filed by the petitioner seeking following reliefs: "(i) That, the respondents no. 1 and 2 be directed to grant approval to compassionate appointment to the petitioner under grant-in-aid and release the salary from the date of appointment. (ii) any other relief which this Honb'le Court may deem fit in the circumstances of the case may also be granted, (iii) Costs may also be awarded." 2. It is alleged by counsel for the petitioner that petitioner's father Kedar Singh who was working as Asstt. Teacher in Aided Primary School Chandokhar, Tahsil Ambah, District Morena passed away on 13.2.2008 while in service. The petitioner duly applied for grant of compassionate appointment. It is further submitted that despite of submitting an application for compassionate appointment the respondent authorities are sitting tight over the matter. Thus, he has prayed that a time bound direction be given to the respondent authorities to decide the case of the petitioner for grant of compassionate appointment. 3. Per contra, counsel appearing for the respondent has denied the contents of the writ petition. It is contended that the basic object of granting compassionate appointment to a dependent family member of the deceased employee is to bring the family out of harness and to provide immediate financial help to the family who has lost bread earner. It is contended that the petitioner's father passed away on 13.2.2008 and the application for grant of compassionate appointment was filed on 6.12.2019. Therefore, consideration of application after almost 11 years is not maintainable. Therefore, he has prayed for dismissal of the writ petition. 4. Heard learned counsel for the parties and perused the record. 5. From perusal of record, it is seen that petitioner has filed an application to the school/society for grant of compassionate appointment which has not been decided by the respondent authorities till date. It is seen that the death of the father of petitioner has taken place in the year 2008. They have survived after the death of his father almost 11 years. Law regarding compassionate appointment is settled. It is seen that the death of the father of petitioner has taken place in the year 2008. They have survived after the death of his father almost 11 years. Law regarding compassionate appointment is settled. Compassionate appointment cannot be claimed as a matter of right, but it is a form of concession which has been provided by the employer to one of the family members of the deceased employee who dies in harness just to overcome the hardship and difficulties being faced by family members of the deceased employee but the same looses validity by lapse of time. After passage of considerable period, the basic object for providing employment looses its significance. 6. The Hon'ble Supreme Court in the case of Canara Bank and Another Vs. M. Mahesh Kumar reported in AIR 2015 SC 2411 has held as under : "Learned counsel for the appellant-bank contended that consideration for appointment on compassionate ground is contrary to Articles 14 and 16 of the Constitution of India and is only in the nature of concession and, therefore, it does not create a vested right in favour of the claimant/respondent. It was submitted that 'Dying in Harness Scheme' is a non-statutory scheme and is in the form of a concession and it does not create a vested right in favour of the claimant/respondent to be enforced through a writ of mandamus. It was further submitted that the compassionate appointment is justified when it is granted to provide immediate succour to the deceased-employee and cannot be granted on the passage of time and in all these cases, the concerned employee died about two decades ago and, therefore, the High Court was not justified in directing the appellant-bank to reconsider the claim of the respondent for compassionate appointment. In support of his contention, learned counsel for the appellant relied upon number of judgments: Umesh Kumar Nagpal vs. State of Haryana And Ors., (1994) 4 SCC 138 ; Steel Authority of India Ltd. vs. Madhusudan Das & Ors., (2008) 15 SCC 560 ; Union of India & Anr. vs. B. Kishore, (2011) 4 SCALE 298 ; State of Haryana vs. Naresh Kumar Bali, (1994) 4 SCC 448 ; State Bank of India & Ors. vs. Jaspal Kaur, (2007) 9 SCC 571 and State Bank of India & Anr. v. Raj Kumar, (2010) 11 SCC 661 ". 7. vs. B. Kishore, (2011) 4 SCALE 298 ; State of Haryana vs. Naresh Kumar Bali, (1994) 4 SCC 448 ; State Bank of India & Ors. vs. Jaspal Kaur, (2007) 9 SCC 571 and State Bank of India & Anr. v. Raj Kumar, (2010) 11 SCC 661 ". 7. Law with regard to employment on compassionate ground for dependant of a deceased employee is well settled. In Sushma Gosain & Ors. vs. Union of India & Ors., (1989) 4 SCC 468 , the Hon'ble Supreme Court has held that we consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. 8. In the case of MGB Gramin Bank Vs. Chakrawarti Singh reported in (2014) 13 SCC 583 , the Hon'ble Supreme Court has held that compassionate appointment cannot be granted as a matter of right and the application should have been filed in time and should be decided expeditiously. Every appointment to public office must be made 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. 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. 9. Aforesaid view has been consistently reiterated in various judgments by the Hon. Supreme Court in the cases of Umesh Kumar Nagpal Vs. 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. 9. Aforesaid view has been consistently reiterated in various judgments by the Hon. Supreme Court in the cases of Umesh Kumar Nagpal Vs. State of Haryana, reported in (1994) 4 SCC 138 , State of Manipur Vs. Md. Rajaodin, reported in (2003) 7 SCC 511 , Steel Authority of India Ltd. Vs. Madhusudan Das and Others reported in (2008) 15 SCC 560 , Sanjay Kumar Vs. State of Bihar and Others, reported in (2000) 7 SCC 192 . 10. The Hon'ble Supreme Court the case of Bhawani Prasad Sonkar Vs. Union of India and Others, reported in (2011) 4 SCC 209 , the Hon. Apex Court has held as under : "15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our Constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve". 11. Thus, considering the aforesaid facts and circumstances of the case and considering the said legal position by Hon'ble Supreme Court in large number of cases, it is held that the petitioner who has approached respondent authorities for grant of compassionate appointment does not require any sympathy from the court due to delay cause in filling the application as the basic purpose for grant of compassionate appointment does not exist anymore. The family of deceased employee has overcome the trauma faced by them and they have already overcome the hardship due to demise of bread earner of the family and it is well settled that compassionate appointment cannot be claimed as a matter of right. It is granted in the form of a concession. It is not a mode of recruitment, rather it is an exception to the general mode of recruitment. Thus, there are no merits in the writ petition filed by the petitioner. 12. Accordingly, the petition is dismissed. No order as to the cost E-copy/Certified copy as per Rules/directions.