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2023 DIGILAW 1441 (JHR)

Pinki Kumari v. State of Jharkhand

2023-12-07

SUJIT NARAYAN PRASAD

body2023
JUDGMENT : 1. The instant writ petition has been filed for quashing memo dated 11.10.2021 by which the claim of the writ petitioner for appointment on compassionate ground as lady constable has been rejected on the ground that application filed by the petitioner is after delay of 15 years, which is contrary to the statutory provision as contained under letter no. 10167/(Anu) dated 01.12.2015 wherein the period of limitation for filing the application for compassionate appointment is five years. 2. Brief facts of the case, as per pleading made in the writ petition, reads as under: 3. The father of the writ petitioner while posted as Assistant Sub-Inspector of Police died in harness on 22.12.2006. It is the case of the petitioner that since a dispute arose regarding successor of deceased-employee as such the petitioner has to file succession case being Succession Case No. 09 of 2009 for issuance of succession certificate, which was allowed vide order dated 18th September, 2016 and thereafter, Succession Certificate was issued on 03.05.2019 only then the petitioner submitted application on 08.05.2021 before Superintendent of Police, Sareikella-Kharsawan for appointment as Lady Constable on compassionate ground, who recommended her name before Deputy Inspector General of Police (Budget), Jharkhand. 4. The Deputy Inspector General of Police (Budget), Jharkhand rejected the claim of the petitioner vide order dated 11.10.2021 stating that the application since has been filed beyond the period of limitation of 5 years, hence the same is time-barred. 5. It is evident from the factual aspect that the writ petitioner has filed application on 08.05.2021 for appointment on compassionate ground after death of his father, who died on 22.12.2006, which is admittedly filed after delay of 15 years. 6. The authority has examined her application and rejected the same as the same was filed after inordinate delay of 15 years, which is beyond the period of limitation of five years as stipulated under rule as contained in letter no. 10167/(Anu) dated 01.12.2015. 7. 6. The authority has examined her application and rejected the same as the same was filed after inordinate delay of 15 years, which is beyond the period of limitation of five years as stipulated under rule as contained in letter no. 10167/(Anu) dated 01.12.2015. 7. The said order is under challenge before this Court on the ground that the reason for filing the belated application for consideration of such claim is due to the dispute in the family for succession for which the competent court of civil jurisdiction has been approached for succession certificate which has been issued after lapse of about 10 years in the year 2019 and only thereafter the application for consideration of such claim has been made after succession certificate having been granted in favour of writ petitioner. 8. The contention has been made that before rejecting the aforesaid claim, the authority did not consider the aforesaid fact and passed the impugned order as such the same is not sustainable in the eye of law. 9. Counter affidavit has been filed on behalf of State. 10. Learned counsel for the respondents-State by putting reliance upon the averments made therein has submitted that the application filed after lapse of about 14 years from the date of death of father of the petitioner which is the main reason for rejecting the claim of the petitioner as application for appointment on compassionate ground was to be filed within the period of five years from the date of death of deceased-employee. 11. As such submission has been made that the impugned order passed by the respondent-authority suffers from no error as such the instant writ petition is fit to be dismissed. 12. We have heard learned counsel for the parties, perused the pleading available on record as also the impugned order passed by the competent authority. 13. The legality and propriety of impugned order dated 11.10.2021 is the subject matter of instant writ petition. The writ petitioner has submitted application for appointment on compassionate ground on the post of lady constable which was rejected on the ground that the application has been filed after delay of 15 years. Purpose to assign such reason in the impugned order is that the very scheme wherein provision has been provided to make an application within a period of five years. 14. Purpose to assign such reason in the impugned order is that the very scheme wherein provision has been provided to make an application within a period of five years. 14. It requires to refer herein that the respondent-State of Jharkhand has come with a rule in the year 2015 as contained in letter no. 10167/(Anu) dated 01.12.2015, which is in supersession of the previous circular dated 5th October, 1990 whereby and whereunder the erstwhile State of Bihar has formulated rule to provide appointment on compassionate ground to the dependent of the bereaved family subsequent to the issuance of said notification, an another circular was issued in the year 1995, inserting the period of limitation to file application within five years form the date of death of employee died in harness. Subsequently the year 2015 by way of circular as contained in letter no. 10167/(Anu) dated 01.12.2015 the stipulation has been made in the original scheme dated 5th October, 1990 and thereafter Rule 2015 has been formulated in exercise of power conferred under Article 309 of the Constitution of India wherein specific provision has been made that application for appointment on compassionate ground has to be filed within a period of five years. 15. Herein death of the father of the petitioner has occurred on 22.12.2006 hence the reference of the old scheme dated 5th October, 1990 and the corresponding notification as contained in letter no. 10167/(Anu) dated 01.12.2015 has been referred herein along with the Rule 2015 reason being that the death has occurred on 22.12.2006 prior to enactment of Rule 2015 and during the subsistence of scheme dated 5th October, 1990. The reason behind filing application for appointment on compassionate ground is stipulated period as of 5 years is for the purpose of achieving the object and intent for appointment on compassionate ground. 16. The purpose of appointment on compassionate ground is to provide immediate succor to the bereaved family. The State even knowing the fact that compassionate appointment is be made within the teeth of Article 14 and 16 of the Constitution of India is by way of welfare scheme/measure, the scheme has been formulated earlier by virtue of scheme dated 5th October, 1990 and subsequent legislation has been made under proviso to Article 309 of the Constitution of India i.e., in the year 2015. 17. 17. The Hon’ble Apex Court has considered the very object and intent of appointment on compassionate ground in the case of Umesh Kumar Nagpal v. State of Haryana [ (1994) 4 SCC 138 wherein judgment rendered in the case of Sushma Gosain v. Union of India [ (1989) 4 SCC 468 has been dismayed and it has been held at paragraphs 4 and 6 as under: 4. It is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even directed compassionate employment either as a matter of course or in posts above Classes III and IV. We are also dismayed to find that the decision of this Court in Sushma Gosain v. Union of India [ (1989) 4 SCC 468 : 1989 SCC (L&S) 662 : (1989) 11 ATC 878 : (1989) 4 SLR 327 ] has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above Classes III and IV. In the present case, the High Court has rightly pointed out that the State Government's instructions in question did not justify compassionate employment in Class II posts. However, it appears from the judgment that the State Government had made at least one exception and provided compassionate employment in Class II post on the specious ground that the person concerned had technical qualifications such as M.B.B.S., B.E., B.Tech. etc. Such exception, as pointed out above, is illegal, since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the penurious condition of the deceased's family. Neither the qualifications of his dependant nor the post which he held is relevant. It is for this reason that we are unable to understand the following observations of the High Court in the impugned judgment: “We are of the view that the extraordinary situations require extraordinary remedies and it is open to the Government in real hard cases to deviate from the letter and spirit of the instructions and to provide relief in cases where it is so warranted. To hold as a matter of law that the Government cannot deviate even minutely from the policy of providing appointment only against Class III and Class IV posts, would be to ignore the reality of life these days. It would be ridiculous to expect that a dependant of a deceased Class I Officer, should be offered appointment against a Class III or IV post. While we leave it to the Government to exercise its discretion judiciously in making appointments to Class I or II posts on compassionate grounds, yet a word of caution needs to be struck. It is to be noted that such appointments should be ordered in the rarest of rare cases, and in very exceptional circumstances. As a matter of fact, we would recommend that the Government should frame a policy even for such appointments.” 6. For these very reasons, the compassionate employment 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.” 18. Further it is also settled proposition of law that appointment on compassionate ground is in the teeth of Article 14 and 16 of the Constitution of India. For ready reference the law laid down by Hon’ble Apex Court in the judgment rendered in Commissioner of Public Instructions and Others v. K.R. Vishwanath [ (2005) 7 SCC 206 ], at paragraph 9 is quoted as under: “9. As was observed in State of Haryana v. Rani Devi [ (1996) 5 SCC 308 ], it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. Strictly this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in-harness scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi case [ (1996) 5 SCC 308 ] it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In LIC of India v. Asha Ramchhandra Ambekar [ (1994) 2 SCC 718 ] it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana [ (1994) 4 SCC 138 ] that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.” 19. Further it is settled position of law that if the rule/scheme has been provided containing therein certain conditions it is to be strictly adhered to otherwise the decision if taken contrary to the said provision of scheme/rule will be in the teeth of same. Further it is settled position of law that if the rule/scheme has been provided containing therein certain conditions it is to be strictly adhered to otherwise the decision if taken contrary to the said provision of scheme/rule will be in the teeth of same. Reference in this regard be made to the judgment rendered in the case of Bhawani Prasad Sonkar v. Union of India and Others [ (2011) 4 SCC 209 ], wherein at paragraph 20 held as under: “20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind: (i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme. (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be. (iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.” 20. This Court after discussing the legal position and coming back to the factual aspect of give case in order to assess the legality and propriety of the impugned order has found that the said application was admittedly filed after 15 years. 21. However, the reason was assigned that there was family dispute but the said family dispute cannot come in the way of object of the Act to provide immediate succor to the dependent of bereaved family. 21. However, the reason was assigned that there was family dispute but the said family dispute cannot come in the way of object of the Act to provide immediate succor to the dependent of bereaved family. Admittedly, herein the application for appointment on compassionate ground has been filed after lapse of 15 years and when the family of deceased employee survived for a long period of 15 years then at such a belated stage it cannot be said to be a ground for appointment on compassionate ground otherwise it will be said to be appointment by way of alternative remedy. 22. However reason is that appointment on compassionate ground is in the teeth of Article 14 and 16 of the Constitution of India as such the provision has been carved out as exception to the aforesaid principle and as such this Court is of the view that compassionate appointment, after lapse of 15 years will be only in the teeth of Article 14 and 16 of Constitution of India. 23. The Hon’ble Apex court while dealing with the issue of delay caused in filing the application for compassionate appointment in the case of Central Coalfields Ltd. vs. Parden Oraon, reported in (2021) 16 SCC 384 has held at paragraph 9 as under: “9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the respondent's son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the respondent's husband is missing since 2002. Two sons of the respondent who are the dependants of her husband as per the records, are also shown as dependants of the respondent. It cannot be said that there was any financial crisis created immediately after the respondent's husband went missing in view of the employment of the respondent. Though the reasons given by the employer to deny the relief sought by the respondent are not sustainable, we are convinced that the respondent's son cannot be given compassionate appointment at this point of time. Though the reasons given by the employer to deny the relief sought by the respondent are not sustainable, we are convinced that the respondent's son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the respondent in the year 2013 which is more than 10 years after the respondent's husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the respondent's son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.” 24. This Court after considering the aforesaid fact as also legal position is of the view that the claim of the writ petitioner has been rejected considering the application was filed beyond the period of limitation from the date of death of father of the writ petitioner, the same cannot be said to suffer from error. 25. Since the writ petition has been filed for writ of certiorari hence it is incumbent upon the Court to exercise the power conferred under Article 226 of the Constitution of India, as has been enunciated by Hon’ble Apex Court in the case of Syed Yakoob Vrs. K.S. Radhakrishnan & Ors, reported in A.I.R. 1964 SC 477, wherein at paragraph no. 7 their Lordships have been pleased to held as follows:- “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point 11 and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised.” In another judgment the Hon'ble Apex Court in the Case of Sawarn Singh & Anr. Vrs. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised.” In another judgment the Hon'ble Apex Court in the Case of Sawarn Singh & Anr. Vrs. State of Punjab & Ors reported in (1976) 2 SCC 868 their Lordships while discussing the power of writ under Article 226 for issuance of writ of certiorari has been pleased to hold at paragraph nos.12 and 13 as under: “12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the High Court in writ proceedings under Article 226. It is well settled that certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate court. As was pointed out by this Court in Syed Yakoob case, “this limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be.” “13.In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.” Likewise, in the case of Pepsico India Holding Private Limited Vrs. Krishna Kant Pandey reported in (2015) 4 SCC 270 their Lordships while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of interference with the finding of the tribunal has been pleased to hold by placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs. Ashalata S. Guram reported in (1986) 4 SCC 447 at paragraph 14 has held as under:- “14.While discussing the power of the High Court under Articles 226 and 227 of the Constitution interfering with the facts recorded by the courts or the tribunal, this Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [ (1986) 4 SCC 447 ], held as under: “17. In case of finding of facts, the Court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta [ (1975) 1 SCC 858 : AIR 1975 SC 1297 ] where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at AIR p. 1301 of the Report as follows: “7. The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath [ AIR 1954 SC 215 ] (AIR p. 217, para 14) that the “power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee [ AIR 1951 Cal 193 ], to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors”. This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bora v. Commr. of Hills Division [ AIR 1958 SC 398 ] and it was pointed out by Sinha, J., as he then was, speaking on behalf of the Court in that case: (AIR p. 413, para 30) “30. … It is, thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.” 26. This Court is of the view that neither of the conditions as stipulated in the aforesaid judgments are available herein, as such no interference is required. 27. Accordingly, the writ petition stands dismissed.