IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 6324 of 2009
Nandi Bala Kumari ......Petitioner
Versus
1. The State of Jharkhand
2. Deputy Commissioner, Ranchi
3. District Superintendent of Education, Ranchi......Respondents
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CORAM: HON'BLE MR. JUSTICE D. N. PATEL
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For the Petitioner : M/s A.K.Sahani & Ajit Kumar, Advocates
For the State : Mr. Binoda Nand Tiwary, J.C. to G.P.-II
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th
03/ Dated: 8 April, 2010
1. Learned counsel for the petitioner submitted that neither the
petitioner has been given compassionate appointment by the respondents
nor the respondents have paid her the family pension and, therefore, the
present writ petition has been preferred.
2. Learned counsel for the petitioner submitted that the father of
the petitioner has expired on 5th May, 1986 and at the relevant date, the age
of the petitioner was six years and, therefore, the petitioner applied for
compassionate appointment, only upon attaining the age of majority, but,
the respondents are not appointing the petitioner on compassionate ground.
The petitioner's mother has expired in the year, 2003 and, thereafter, the
respondents have stopped the payment of family pension, as stated in
paragraph no.11 of the writ petition and, therefore, let a suitable direction
be given to the respondents for compassionate appointment as well as for
payment of family pension to the petitioner.
3. I have heard learned counsel for the respondents, who has
submitted that the father of the petitioner has expired on 5th May, 1986.
More than a period of two decade having lapsed, the purpose of
compassionate appointment is already over, as the petitioner has survived
for approximately twenty three years after the death of her father. Learned
counsel for the respondents has relied upon the decisions, rendered by the
Hon'ble Supreme Court in the cases of State of U.P. V. Paras Nath, as
reported in (1998)2 SCC page-412, Sanjay Kumar V. State of Bihar &
anr., as reported in (2000)7 SCC page-192, Santosh Kumar Dubey V.
State of Uttar Pradesh & anr., as reported in (2009)6 SCC page-481 and
M/s Eastern Coalfields Ltd. V. Anil Badyakar & ors., as reported in AIR
2.
2009 SC page-2534, and submitted that after a long lapse of time from the
date of death of the employee, the surviving legal heir is not entitled for
compassionate appointment. There cannot be a reservation of a seat for a
minor, who has attained the age of majority after several years, as has been
held by the Hon'ble Supreme Court in the case of Sanjay Kumar V. State
of Bihar & anr., as reported in (2000)7 SCC page-192, at paragraph no.3,
and, therefore, this writ petition deserves to be dismissed. Learned counsel
for the respondents further submitted that so far as pension is concerned, it
is payable to a retired employee and after the death of the employee, family
pension will be paid to the widow. In the facts of the present case, mother
of the petitioner has also expired in the year, 2003 and at that time, the
petitioner was more than 23 years of age and, therefore, this petitioner is
not entitled for any pension amount and hence, this writ petition deserves to
be dismissed.
4. In view of the aforesaid submissions, I see no reason to
entertain this writ petition, mainly for the following facts and reasons:
(i) It appears from the facts of the case that the father of the
present petitioner expired on 5th May, 1986, who was working with the
respondents. Petitioner's age was six years, as on the date of death of her
father.
(ii) The petitioner attained the age of majority, much later, in the
year, 1999 and, thus, after several years, petitioner is claiming
compassionate appointment, which is not allowed to be given, otherwise,
the very purpose of compassionate appointment will be frustrated.
Petitioner has survived for several years after the death of her father.
(iii) It has been held by the Hon'ble Supreme Court in the case of
State of U.P. V. Paras Nath, as reported in (1998)2 SCC page-412, at
paragraph nos. 4, 5 and 6, as under:
"4. Seventeen years after the death of his father, the
respondent, on 8.1.1986, made an application for being appointed to
the post of a Primary School Teacher under the said Rules. His
application was rejected. He, thereafter, filed a writ petition before
the High Court. This writ petition was allowed by the High Court
3.
and an appeal from the decision of the Single Judge of the High
Court was also dismissed by the Division Bench of the High Court.
Hence the State has filed the present appeal.
5. The purpose of providing employment to a dependent 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. To alleviate
the distress of the family, such appointments are permissible on
compassionate grounds provided there are Rules providing for such
appointment. The purpose is to provide immediate financial
assistance to the family of a deceased Government servant. None of
these considerations can operate when the application is made after a
long period of time such as seventeen years in the present case.
6. We may, in this connection, refer to only one judgment of
this Court in the case of Union of India v. Bhagwan Singh. In this
case, the application for appointment on similar compassionate
grounds was made twenty years after the railway servant's death.
This Court observed:
"The reason for making compassionate appointment, which is
exceptional, is to provide immediate financial assistance to the
family of a Government servant who dies in harness, when there is
no other earning member in the family."
(Emphasis supplied)
In view of the aforesaid decision, consideration for
compassionate appointment cannot operate, when the application is
made after a long period of time.
(iv) It has been held by the Hon'ble Supreme Court in the case of
Sanjay Kumar V. State of Bihar & ors., as reported in (2000)7 SCC
page-192, at paragraph nos. 2 and 3, as under:
"2. Learned Senior Counsel appearing on behalf of the
petitioner has placed strong reliance on the decision of a learned
Single Judge of the Patna High Court in Chandra Bhushan v. State
of Bihar. Learned Senior Counsel points out that it was held in that
4.
case that an applicant's right cannot be defeated on the ground of
delay caused by authorities which was beyond the control of the
applicant. Learned Senior Counsel further points out that instead of
following the above judgment, the same learned Judge has now held
on 21-4-1997 that the application is time-barred. Learned counsel
has placed before us a judgment of this Court in Director of
Education (Secondary) v. Pushpendra Kumar. He submits that, in
this case, a direction was given to create supernumerary posts.
3. We are unable to agree with the submissions of the learned
Senior Counsel for the petitioner. This Court has held in a number of
cases that compassionate appointment is intended to enable the
family of the deceased employee to tide over sudden crisis resulting
due to death of the breadearner who had left the family in penury and
without any means of livelihood. In fact such a view has been
expressed in the very decision cited by the petitioner in Director of
Education v. Pushpendra Kumar. It is also significant to notice that
on the date when the first application was made by the petitioner on
2-6-1988
, the petitioner was a minor and was not eligible for
appointment. This is conceded by the petitioner. There cannot be
reservation of a vacancy till such time as the petitioner becomes a
major after a number of years, unless there are some specific
provisions. The very basis of compassionate appointment is to see
that the family gets immediate relief.
(Emphasis supplied)
In view of the aforesaid decision, though the petitioner is
attaining the age of majority, later on, there cannot be a reservation
of a vacancy, till such time as the petitioner becomes a major, after a
number of years and, therefore, the petitioner is not entitled for
compassionate appointment.
(v) It has been held by the Hon’ble Supreme Court in the case of
Santosh Kumar Dubey v. State of Uttar Pradesh & ors., as reported in
(2009)6 SCC page-481, especially at paragraph nos.11 and 12, as under:
“11. The very concept of giving a compassionate appointment
5.
is to tide over the financial difficulties that are faced by the family of
the deceased due to the death of the earning member of the family.
There is immediate loss of earning for which the family suffers
financial hardship. The benefit is given so that the family can tide
over such financial constrains.
12. The request for appointment on compassionate grounds
should be reasonable and proximate to the time of the death of the
bread earner of the family, inasmuch as the very purpose of giving
such benefit is to make financial help available to the family to
overcome sudden economic crisis occurring in the family of the
deceased who has died in harness. But this, however, cannot be
another source of recruitment. This also cannot be treated as a
bonanza and also as a right to get an appointment in government
service.”
(Emphasis supplied)
In view of the aforesaid decision also, there is no legal vested
right for compassionate appointment. After a long lapse of time, no
compassionate appointment can be given.
(vi) It has been held by the Hon’ble Supreme Court in the case of
M/s Eastern Coalfields Ltd. v. Anil Badyakar & ors., as reported in A.I.R.
2009 SC page-2534, especially at paragraph no.19, as under:
“19. The principles indicated above would give a clear
indication that the compassionate appointment is not a vested right
which can be exercised at any time in future. The compassionate
employment cannot be claimed and offered after a lapse of time and
after the crisis is over. In the instant case the employee died in
harness in the year 1981 and after a long squabble by the dependents
of the deceased, they arrived at a settlement that the son-in-law of the
second daughter who is unemployed may request for appointment on
compassionate grounds. The request so made was accepted by the
Personnel Manager of the Company subject to the approval of the
Director of the Company. The Director (P), who is the competent
authority for post facto approval, keeping in view the object and
6.
purpose of providing compassionate appointment has cancelled the
provisional appointment on the ground that nearly after 12 years from
the date of death of the employee such an appointment could not
have been offered to the so-called dependent of the deceased
employee. In our considered view, the decision of the employer was
in consonance with Umesh Kumar Nagpal’s case and the same should
not have been interfered with by the High Court.”
(Emphasis supplied)
In view of the aforesaid decision, there is no legal vested right
for compassionate appointment, especially when much longer period
has lapsed from the date of death of the employee in harness. In the
facts of the present case also, father of the petitioner has expired on
5th May, 1986. Thereafter, more than a period of two decade is over
and hence, the petitioner is not entitled for compassionate
appointment.
5. In view of the aforesaid facts, reasons and judicial pronouncements,
the petitioner is not entitled for compassionate appointment. So far pension
amount is concerned, the mother of the petitioner has expired in the year,
2003, as stated in paragraph no.11 of the memo of petition and it is
submitted by the learned counsel for the petitioner that the age of the
petitioner, as in the year, 2003, was more than twenty one years. She
attained the age of majority in the year, 1999, as per paragraph no.10 of the
writ petition. Thus, the petitioner is also not entitled for any family pension.
In view of the aforesaid facts, this writ petition is hereby dismissed.
(D.N. Patel, J)
A.K.Verma/