Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 1124 (RAJ)

Nikhil Lakhiwal Son of Late Nirmala Lakhiwal (Mother) v. Union Of India, Through General Manager, Western Railway (Headquarter), Church Gate, Mumbai

2022-04-07

ANOOP KUMAR DHAND, PRAKASH GUPTA

body2022
ORDER : Anoop Kumar Dhand, J. 1. Instant petition has been filed against the order dated 30.07.2021 passed by Central Administrative Tribunal, Jaipur Bench, Jaipur (for short 'the Tribunal') in Original Application No.291/219/2018 whereby the Tribunal dismissed the original application filed by the petitioner. 2. Skeleton facts of the case are that the mother of the petitioner Smt. Nirmala Lakhiwal expired on 25.07.1995 while she was working as Ex.AA-TAO-AII. The father of the petitioner submitted an application for compassionate appointment of the petitioner on 12.07.2002 before the authorities and the respondents-authorities intimated the father of the petitioner vide letter dated 11.12.2002 that the application for compassionate appointment of the petitioner has been kept under the category of 'future case' and accordingly the name of the petitioner was registered for appointment on compassionate ground in future. The father of the petitioner was advised that the application for compassionate appointment would have to be submitted by the petitioner in his own hand writing immediately after attaining the age of majority by him. 3. Thereafter, father of the petitioner remarried on 07.05.2001 and petitioner, after attaining the age of majority, submitted an application for compassionate appointment, which the same was rejected by the respondents on 26.10.2017 by observing that the compassionate appointment is not permissible in the case of the petitioner as the father of the petitioner (widower) has remarried. Against the rejection order dated 26.10.2017, the petitioner filed original application before 'the Tribunal' with a prayer for directing the respondents to grant him compassionate appointment. 4. After hearing the arguments of both sides, the Tribunal observed that the mother of the petitioner expired on 25.07.1995 and thereafter, the family of the petitioner was maintaining themselves for more than 24 years. Thus, it cannot be believed that the petitioner and his family were said to be dying in harness and the petitioner is able to maintain himself and thereby the Tribunal dismissed the original application filed by the petitioner by observing that the rejection order dated 26.10.2017 does not deserve any interference and the application suffers from merit and accordingly original application was dismissed vide order dated 30.07.2021. 5. Feeling aggrieved and dissatisfied by the impugned order dated 30.07.2021, the petitioner has filed this petition before this Court. 6. Heard learned counsel for the petitioner. 7. 5. Feeling aggrieved and dissatisfied by the impugned order dated 30.07.2021, the petitioner has filed this petition before this Court. 6. Heard learned counsel for the petitioner. 7. From the facts narrated in the writ petition, it emerges out that the deceased-employee expired on 25.07.1995 and thereafter father of the petitioner submitted an application for compassionate appointment of the petitioner after a lapse of 6 years i.e. on 12.07.2002. The said application was kept pending by the respondents under the category of future case and the father of the petitioner was directed to submit the application in the handwriting of the petitioner immediately after his attaining the age of majority. 8. It is not in dispute that the petitioner attained the age of majority in the year 2013 and thereafter, no application was submitted by him for compassionate appointment till 2015. It is worthwhile to mention here that as per Circular dated 18.04.1985, if any staff member dies in harness and where the widow cannot take up the employment and son/daughter is minor, the case may be kept pending till the first son/daughter becomes major or attains the age of 18 years. However, such cases can be kept pending for a period of only five years and after which appointment on compassionate ground will not be permissible. 9. Here in the instant case, the aforesaid timeline of five years expired in the year 2007 w.e.f. 11.12.2002, when the father of the petitioner was directed to submit the application for compassionate appointment of the petitioner in his own handwriting, after attaining the age of majority. It is true that till the year 2007, when the timeline of five years was expired, the petitioner was minor, but it is also true that after attaining the age of majority by the petitioner in the year 2013, no application was submitted by him in his own handwriting till 2015. Meaning thereby, the petitioner submitted the application after two years after attaining the age of majority by him. 10. The Tribunal considered the fact that at the time of death of the deceased-employee, the petitioner was minor and he became major in the year 2013, but original application was submitted by him in the year 2018, challenging the order dated 26.10.2017 whereby the claim of the petitioner for compassionate appointment was rejected. 11. 10. The Tribunal considered the fact that at the time of death of the deceased-employee, the petitioner was minor and he became major in the year 2013, but original application was submitted by him in the year 2018, challenging the order dated 26.10.2017 whereby the claim of the petitioner for compassionate appointment was rejected. 11. It was observed by the Tribunal that the reasons recorded by the respondents for rejection of the claim of the petitioner is immaterial for the reason that the applicant was able to maintain himself from the year 1995 till date which goes to show that the family cannot be said to be in indigent condition for dying in harness and when the family members were maintaining themselves for more than 24 years, then the family cannot said to be either in penury or can be said to be dying in harness and accordingly the Tribunal dismissed the original application filed by the petitioner. 12. It has also been held by the Hon'ble Supreme Court in the case of "Punjab State Power Corporation Ltd. & Ors. Vs. Nirval Singh, reported in (2019) 6 SCC 774 " that delay in pursuing claim/approaching court would mitigate against claim for compassionate appointment as very objective of providing immediate amelioration to family would stand extinguished. 13. In the said case, there was a delay of seven years in approaching the Court, thus, the Hon'ble Apex Court observed that "on the ground of delay itself, the heir of the deceased employee shall not be entitled to appointment on compassionate ground." 14. In the case of "State of J & K & Ors. Vs. Sajad Ahmed Mir reported in (2006) 5 SCC 766 ", the Hon'ble Supreme Court has considered the delay and laches in case of appointment on compassionate ground. By dismissing the claim for appointment on compassionate ground, which was made after a period of four and a half years of the death of the deceased employee, it was held that the appointment on compassionate ground is an exception to the general rule. An appointment to public offices should be made on the basis of competitive merits. By dismissing the claim for appointment on compassionate ground, which was made after a period of four and a half years of the death of the deceased employee, it was held that the appointment on compassionate ground is an exception to the general rule. An appointment to public offices should be made on the basis of competitive merits. It was further observed that once it is proved that inspite of the death of the breadwinner, the family survived and the substantial period is over, there is no need to make appointment on compassionate ground, at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution of India. 15. Even in the case of Umesh Kumar Nagpal V/s. State of Haryana & Ors. (1994) 4 SCC 138 , the Hon'ble Apex Court has held that compassionate appointment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. 16. Similarly, in the case of Indian Bank & Ors. V/s Promila & Anr. reported in (2020) 2 SCC 729 , it has been held that though Court has sympathy with the respondents about the predicament they faced on the death of deceased but sympathy alone cannot give remedy to the respondents and it is not for the courts to substitute a scheme or add or subtract from the terms thereof in exercise of judicial review. 17. In the case of "Smt. Sushma Gosain vs. Union of India & Ors. reported in (1989) 4 SCC 468 " Hon'ble Supreme Court observed that in all claims for appointment on compassionate grounds, there should be not any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the breadearner in the family. 18. In the case of "Government of India & Ors. Vs. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the breadearner in the family. 18. In the case of "Government of India & Ors. Vs. P. Venkatesh" vide Civil Appeal No.2425 of 2019 decided on 01.03.2019, the Hon'ble Apex Court has held that the compassionate appointment is intended to enable the family of a deceased employee to tide over the crisis which is caused as a result of the death of an employee, while in harness. The essence of the claim lies in the immediacy of the need. The Hon'ble Supreme Court after considering the aforesaid, rejected the application for compassionate appointment where the person concerned had approached the Tribunal after a period of a decade of the death of the deceased employee. 19. Looking to the material available on record and after applying the law laid down by the Hon'ble Supreme Court in the foregoing paragraphs, we are of the considered opinion that the contentions put forward by the counsel for the petitioner do not carry any merit. 20. Thus, this Court does not able to accept the claim of the petitioner for compassionate appointment after a great lapse of 24 years. Thus, the impugned order dated 30.07.2021 passed by the Tribunal warrants no interference by this Court. 21. In the result, the writ petition filed by the petitioner is found to be devoid of merit and accordingly the same is dismissed. 22. No order as to cost. 23. Stay application as well as all pending applications, if any, also stand disposed off.