Mrinmoy Das, son of late Shishir Kumar Das v. State of Jharkhand through its Chief Secretary, Government of Jharkhand
2023-06-22
ANANDA SEN, SANJAYA KUMAR MISHRA
body2023
DigiLaw.ai
ORDER : (Ananda Sen, J.) 1. The writ petitioner of W.P.(S) No.2541 of 2021, by filing this intra court appeal, challenges the order dated 02.03.2022 passed by the learned Single Judge, whereby and whereunder writ petition filed by the petitioner-appellant was dismissed. 2. Learned counsel appearing on behalf of the petitioner-appellant, submits that the petitioner had earlier approached this Court by filing W.P.(S) No.2002 of 2013, which was dismissed. Challenging the order of dismissal, the petitioner had approached the Division Bench in L.P.A. No.104 of 2015. This Court had remanded the matter to the authority concerned to decide the claim of the petitioner afresh, but the authority again dismissed the claim of the petitioner, taking a different ground, which is absolutely bad. As per him, the Committee, initially, on 14.09.2012, had rejected the claim for compassionate appointment of the petitioner-appellant on the ground of delay as the application of the petitioner was filed on 05.01.2012, i.e., much after the limitation period, which is five years. The aforesaid finding is incorrect as on 04.01.1999, itself, an application was filed by the mother of this petitioner, claiming for compassionate appointment and since the said application was not considered, the matter was remanded by this Court in the earlier L.P.A. No.104 of 2015. Pursuant to such remand, again on 23.11.2006, the authority considered the case of the petitioner, but rejected the same on a different ground, i.e., the ground of minority of this petitioner at the time of death of the employee. As per the counsel for the petitioner-appellant, a new ground has been taken in the fresh rejection order, which is impermissible, keeping in view that the Division Bench of this Court had directed to consider the case of the petitioner afresh on the point of delay. As per him, if the period is primarily calculated, it would be clear that the application for grant of compassionate appointment was filed within five years from the date of death of father of this petitioner. He lastly contends that learned Single Judge failed to take into consideration the aforesaid fact, which needs reconsideration and the petitioner needs to be appointed. On query, learned counsel for the petitioner-appellant admits that at the time of death of his father, petitioner was 9 years few months old, i.e., had not even completed 10 years. 3. The facts are admitted in this case.
On query, learned counsel for the petitioner-appellant admits that at the time of death of his father, petitioner was 9 years few months old, i.e., had not even completed 10 years. 3. The facts are admitted in this case. Father of this petitioner, late Shishir Kumar Das was a teacher under the respondents, who died in harness on 13.02.1994. Mother of this petitioner had filed an application, for grant of compassionate appointment to this petitioner, on 04.01.1999, wherein she mentioned that the age of this petitioner as 14 years and after four years he will attain majority, thus, he should be appointed once he attains majority. The aforesaid application dated 04.01.1999, filed by the mother of the petitioner was not considered, rather the application filed by this petitioner on 05.01.2012, i.e., after attaining majority, was considered and it was rejected by the Committee on the ground that the application filed by the petitioner on 05.01.2012, was after 5 (five) years from the date of death of his father. The writ petitioner-appellant challenged the aforesaid application in writ petition being W.P.(S) No.2002 of 2013, which was dismissed by the learned Single Judge on 10.03.2014. The writ petitioner-appellant had challenged the aforesaid order in L.P.A. No.104 of 2015, taking a ground that the respondents should have considered the application filed by the mother, which was well within 5 (five) years from the date of death of father. The Division Bench allowed the said Letters Patent Appeal holding that the authorities did not consider the application filed by the mother of the petitioner, which was filed on 05.01.1999, thus, the same should be considered. The matter was remanded by the Division Bench to the authorities concerned for reconsideration. On remand, the authorities considered the claim of the petitioner and found that the petitioner was minor on the date of death of his father, thus, he was not entitled for grant of compassionate appointment. 4. The Hon’ble Supreme Court, in the case of State of U.P. versus Premlata, reported in (2022) 1 SCC 30 has held that appointment on compassionate ground is a concession and not a right. Compassionate appointment is an exception to the general rule of appointment in the public service. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis.
Compassionate appointment is an exception to the general rule of appointment in the public service. 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 such family a post much less a post held by the deceased. 5. In the case of Umesh Kumar Nagpal versus State of Haryana reported in (1994) 4 SCC 138 , the Hon’ble Supreme Court has held that 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 for post held by the deceased. What is further, mere death of an employee in harness does not entitled 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 it is only if it is satisfied, that but for the provision of 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. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. 5. The Hon’ble Supreme Court in the case of Director of Treasuries in Karnataka and Another versus V. Somyashree, reported in (2021) 12 SCC 20 at paragraph 10 thereof, while referring to the decision in the case of N.C. Santhosh versus State of Karnataka, reported in (2020) 7 SCC 617 has summarized the law laid down on grant of appointment on compassionate ground. Paragraph 10 of the said judgment reads as under:- 10. The law laid down by this Court in N.C. Santhosh on grant of appointment on compassionate ground can be summarized as under: 10.1. That the compassionate appointment is an exception to the general rule. 10.2 That no aspirant has a right to compassionate appointment. 10.3. The appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India. 10.4.
That the compassionate appointment is an exception to the general rule. 10.2 That no aspirant has a right to compassionate appointment. 10.3. The appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India. 10.4. Appointment on compassionate ground can be made only on fulfilling the norms laid down by the State’s policy and/or satisfaction of the eligibility criteria as per the policy. 10.5. The norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment. 6. In the case of Union of India versus P. Venkatesh, reported in (2019) 15 SCC 613 , the Hon’ble Supreme Court has reiterated that consideration for compassionate employment is not a vested right, which can be exercised at any time in future. 7. In the case of Central Coalfields Limited through its Chairman and Managing Director and Others versus Parden Oraon reported in 2021 SCC OnLine SC 299 the Hon’ble Supreme Court at paragraph 8 thereof, has held as under:- 8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family. It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a significant lapse of time and after the crisis is over. 8.
It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a significant lapse of time and after the crisis is over. 8. In the case of Fertilizers & Chemicals Travancore Ltd. versus Anusree K.B., reported in 2022 SCC OnLine SC 1331 at paragraph 19 thereof, the Hon’ble Supreme Court has held as under:- 19. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the respondent shall not be entitled to the appointment on compassionate ground on the death of her father, who died in the year 1995. After a period of 24 years from the death of the deceased employee, the respondent shall not be entitled to the appointment on compassionate ground. If such an appointment is made now and/or after a period of 14/24 years, the same shall be against the object and purpose for which the appointment on compassionate ground is provided. 9. In the case of State of West Bengal versus Debabrata Tiwari & Others, reported in 2023 SCC OnLine SC 219, the Hon’ble Supreme Court in paragraph 32 thereof, has framed the principles in relation to grant of compassionate appointment. Paragraph 32 of the said judgment reads as under:- 32. On consideration of the aforesaid decisions of this Court, the following principles emerge: i. That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions and must be resorted to only in order to achieve the stated objectives, i.e., to enable the family of the deceased to get over the sudden financial crisis. ii. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependents of the deceased are not deprived of the means of livelihood.
ii. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependents of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis. iii. Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate employment cannot be claimed or offered after a lapse of time and after the crisis is over. iv. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years. v. In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source. 10. After going through the records and hearing the counsel for the petitioner, the fact, which emerges is that the father of this petitioner died on 13.02.1994. In the application filed by the mother of this petitioner on 04.01.1999, she declared that her son was 14 years at that time, which means that at the time of death of father of this petitioner, the petitioner was less than 10 years. The fact is admitted by the appellant. A minor cannot be appointed in government service by any mode far less by way of compassionate means. 11. Further, in this case it is an admitted fact that at the time of death of petitioner’s father, petitioner was less than 10 years. His father died in the year 1994 and now nearly 29 years have lapsed and the family has survived for these long years, thus, it cannot be said that there is immediate hardship, which needs to be tide over. After lapse of 29 years, due to gradual passage of time, the need for compassionate appointment has lost its significance. The family has survived inspite of death of the employee.
After lapse of 29 years, due to gradual passage of time, the need for compassionate appointment has lost its significance. The family has survived inspite of death of the employee. When the family has survived for this long period, as per the Hon’ble Supreme Court in the case of State of Jammu & Kashmir versus Sajad Ahmed Mir reported in (2006) 5 SCC 766 [as referred to by the Hon’ble Supreme Court in the case of Debabrata Tiwari (supra)], grant of compassionate appointment would not be in furtherance of a scheme for compassionate appointment. 12. In this case also more than 29 years have lapsed, thus, granting compassionate appointment at this stage will not be in furtherance of the object of the scheme of compassionate appointment. 13. Further, in paragraph 35 of the judgment in the case of Debabrata Tiwari (supra), the Hon’ble Supreme Court has held that for reasons of prolonged delay either on the part of the applicant in claiming for compassionate appointment or the authorities in deciding such claim, sense of immediacy is diluted and lost. 14. Thus, what we gather is that even if the matter is kept pending and not decided immediately and considerable period is consumed, the urgency is diluted and lost, in such circumstance also compassionate appointment cannot be granted. In this case, we find that the mother of the petitioner, though applied within 5 (five) years from the date of death of the employee, but she prayed to reserve the post for grant of compassionate appointment to her son and to appoint this petitioner after he attains majority, i.e., after 4 (four) years from the said application. 15. From the judgments of the Hon’ble Supreme Court, it is clear that compassionate appointment has to be granted immediately. This means that a post cannot be kept reserved for an indefinite period to grant compassionate appointment to an heir of the deceased employee, who dies in harness. Furthermore, a minor cannot be appointed in any public service. In this case, at best, the petitioner became eligible to be appointed in a public service after 8 (eight) years from the date of death of his father. The petitioner’s mother applied to reserve a post for this long period, which is absolutely impermissible and against the scheme of compassionate appointment. 16.
In this case, at best, the petitioner became eligible to be appointed in a public service after 8 (eight) years from the date of death of his father. The petitioner’s mother applied to reserve a post for this long period, which is absolutely impermissible and against the scheme of compassionate appointment. 16. Thus, from what has been discussed above, we find no merit in this Letters Patent Appeal, as the appellant cannot claim compassionate appointment. Learned Single Judge has correctly rejected the claim for grant of compassionate appointment of the petitioner. The impugned order dated 02.03.2022 passed by the learned Single Judge in W.P.(S) No.2541 of 2021 needs no interference by this Court. This Letters Patent Appeal is accordingly, dismissed. There shall be no orders as to costs. Urgent certified copies of this order shall be issued as per the Rules.