compassionate appointment

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: Resolving a date of birth related controversy, the Division Bench of Justice Umesh Chandra Srivastava and Vice Admiral Abhay Raghunath Karve, Member (A) stated,

“If we take date of birth recorded in educational certificate of the applicant as correct i.e. 05-07-1992 and date of birth in respect of his younger brother being 20-02-1992 as per service records, one can imagine as to how it could be possible that an elder brother comes to this world later than his younger brother.”

The applicant-son of the deceased had applied for a job in place of his deceased father’s post under ‘Employment Assistance under Indigent Circumstances Scheme’ and the same could not be processed due to mismatch of applicant’s name and date of birth in educational certificates and service records.

The application having certain defects was returned to applicant which he never re-submitted to respondents duly rectified. The raised by the respondent were that there was mismatch in name and date of birth recorded in educational certificates and Personal Occurrence Report maintained by the respondents as per declaration given by father of the applicant. On the basis of educational certificate and service record, it could easily be held that there was forgery with regard to date of birth as applicant being elder was born on 05-07-1992 (as per Educational Certificate) and his younger brother Deepak Kumar was born on 20-02-1992 i.e. prior to birth of his elder brother. The details of the applicant were as follows:

“Educational certificate: Name: Suneel Kumar, DOB: 05-07-1992

Service Records: Name:  Sunil, DOB: 27-03-1990”

The policy letter dated 27-01-2014 with regard to correction of name and change of date of birth in respect of children of Central Govt Employees states that if there is a typographical error while publishing Part II Order/Personal Occurrence Report, it can be corrected by approval of Officer-in-Charge. However, in the instant case names and dates of birth published through Personal Occurrence Report were entirely different to that of educational certificate. The Bench opined,

“The typographical error may be in date or month or year but complete date of birth cannot be totally different which creates a doubt in mind that there is other motive for change in complete date of birth.”

The Supreme Court in Bharat Coking Coal Ltd. v. Shyam Kishore Singh, (2020) 3 SCC 411, had held that, “while spelling in name can be corrected being a typographical error, date of birth as entered in service register of an employee cannot be changed at the fag end of the service even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right.”

The Tribunal observed that,

“It has become a trend that parents are getting recorded lesser age of their children in school certificates than the actual age to get undue advantage of age. When the children grow up, they try to get it corrected either by submitting applications or by approaching before the court. In this regard, we are of the opinion that correct date of birth is that which is declared by parents and notified by Part II Orders/Personal Occurrence Report published as per declaration made by parents.”

In view of the above, the Bench declined to interfere in the matter of correction in date of birth in respect of applicant. However, the Air Force authorities were directed to make correction of name in respect of applicant by changing it from “Sunil” to “Suneel Kumar”. Similarly, the Board of High School and Intermediate Education, U.P. was directed to make correction in date of birth in respect of applicant and change it to 1990.

Applicant is directed to submit corrected application to Air Force authorities for processing. Respondent authorities (Air Force) are directed to consider his application on merit. [Suneel Kumar v. Union of India, Original Application No. 135 of 2020, decided on 05-10-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Applicant: Ruby Singh, Advocate.

For the Respondent: Ashish Kumar Singh, Advocate

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and AS Bopanna, JJ has held that the dependent of the deceased employee cannot seek the appointment on compassionate ground on the higher post than what was held by the deceased employee as a matter of right, on the ground that he/she is eligible fulfilling the eligibility criteria of such higher post.

Interpreting the term ‘suitable post’ under Rule 5 of the Dying-­In-Harness Rules, 1974, the Court held that ‘Suitable post’ has to be considered, considering status/post held by the deceased employee and the educational qualification/eligibility criteria is required to be considered, considering the post held by the deceased employee and the suitability of the post is required to be considered vis a vis the post held by the deceased employee, otherwise there shall be no difference/distinction between the appointment on compassionate ground and the regular appointment.

Explaining by way of an example, the Court said that

“In a given case it may happen that the dependent of the deceased employee who has applied for appointment on compassionate ground is having the educational qualification of Class¬II or Class-I post and the deceased employee was working on the post of Class/Grad IV and/or lower than the post   applied, in that case the dependent/applicant cannot seek the appointment on compassionate ground on the higher post than what was held by the deceased employee as a matter of right, on the ground that he/she is eligible fulfilling the eligibility criteria of such higher post.”

The Court said that allowing so shall be contrary to the object and purpose of grant of appointment on compassionate ground i.e to enable the family to tide over the sudden crisis on the death of the bread   earner.

“… appointment on compassionate ground is provided out of pure humanitarian consideration taking into consideration the fact that some source of livelihood is provided and family would be able to make both ends meet.”

[State of Uttar Pradesh v. Premlata, 2021 SCC OnLine SC 872, decided on 05.10.2021]

Counsels:

For Appellant: Advocate Ruchira Goel

For respondent: Advocate Shashank Singh

*Judgment by: Justice MR Shah

Case BriefsHigh Courts

Tripura High Court: The Division Bench of Akil Kureshi, CJ. and S.G. Chattopadhyay, J., dismissed a petition which challenged an order passed by the Central Administrative Tribunal, Guwahati, dismissing the original application.

Mother of the petitioner was an employee of the Accountant General(Audit), Tripura, Agartala and she died while in service on 25-01-2013, leaving behind the petitioner, his elder brother and daughter. The petitioner had applied for appointment on compassionate ground which was rejected by the department on the ground that at the time of death the petitioner was already married. However, subsequently, the case of the petitioner was reopened and reconsidered. However, the request was again denied on the ground that the family of the deceased had one earning member.

The petitioner thereupon approached the Central Administrative Tribunal. His original application was rejected mainly on the ground that the purpose behind giving compassionate appointment was to provide urgent financial assistance to a family left in distress and in the present case, the Government servant having expired long back, such purpose would not be fulfilled. Thus, the current petition was filed.

The Court was of the view that in facts of the present case they are not inclined to entertain this petition as records say that petitioner was aged about 33 years at the time of the death of his mother and was already married and the family had one member who was holding a permanent post in the department of Accountant General which was not disclosed while seeking compassionate appointment.

The Court dismissed the petition holding that the petitioner had a duty to make a clean disclosure about the survivors left behind by the deceased.[Babu Dhanuk v. Union of India, 2021 SCC OnLine Tri 495, decided on 28-09-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Advocates:

For Petitioner(s): Mr Pradyot Maishan

For Respondent(s): Mr Biswanath Majumder, C.G.C.

Case BriefsSupreme Court

Supreme Court: The bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that retrospective seniority cannot be claimed from a date when an employee is not even borne in service.

Factual Background

  • The father of the respondent was working as a Home guard and after he died in harness, the respondent applied for compassionate appointment.
  • On 20.11.1985, order was issued by the Commandant, Bihar Home Guard forwarding the name of the respondent as one of the persons shortlisted for appointment on compassionate basis.
  • The appointment was conditional upon physical fitness certificate issued by the Civil Surgeon and the respondent was denied appointment as he was found deficient in the physical standards.
  • The recommended persons appeared in the Home Guard Headquarter as directed, but aggrieved, the respondent moved and obtained relief from the Patna High Court for appointment in Class IV post.
  • As the respondent was shortlisted for the post of Adhinayak Lipik, directed that the respondent be appointed to the post of ‘Adhinayak Lipik’ in the Homeguard Department, State of Bihar.
  • Following the above direction of the Supreme Court, the respondent was appointed on 27.2.1996.
  • Six years after joining service, an application was made on 10.9.2002 by the respondent claiming seniority from 1985 but the same was rejected by the authorities on the ground that the respondent was appointed in 1996 and not in 1985.

Analysis

Noticing that the respondent entered service only on 10.2.1996, the Court made clear that,

“The jurisprudence in the field of service law would advise us that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules, should not be allowed, as in so doing, others who had earlier entered service, will be impacted.”

Stating that the respondent was claiming seniority benefit for 10 years without working for a single day during that period, the Court held that precedence was being claimed over other regular employees who had entered service between 1985 to 1996.

It was, hence, held,

“In this situation, the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous.”

Important rulings

Shitla Prasad Shukla vs. State of UP, (1986)(Supp.) SCC 185

“The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the Court will not overturn the determination unless it would be unfair not to do so…”

Ganga Vishan Gujrati And Ors. Vs. State of Rajasthan, (2019) 16 SCC 28

“… retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade.”

[State of Bihar v. Arbind Jee, 2021 SCC OnLine SC 821, decided on 28.09.2021]

____________________________________________________

Counsels:

For appellant: Advocate Abhinav Mukerji

For respondent: Advocate Satvik Misra

*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Case BriefsSupreme Court

Supreme Court: In a case where a woman had sought compassionate appointment after her mother’s death in the year 2012, the bench of MR Shah* and Anirudhha Bose, JJ has held that the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment and since the word ‘divorced daughter’ has been added to Rule 3 of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules 1996 subsequently by Amendment, 2021, the respondent was not entitled to compassionate appointment.

[Note: Rule 2[1] and Rule 3[2] of the Rules 1996 do not include ‘divorced daughter’ as eligible for appointment on compassionate ground and even as ‘dependent’. The same was added to Rule 3 recently by Amendment, 2021.]

However, as straightforward as the case might look, the facts had a very interesting story to tell.

  • The mother of the original writ petitioner, who was employed with the Government of Karnataka as Second Division Assistant at Mandya District Treasury, died on 25.03.2012. The respondent, at that time, was a married daughter.
  • Immediately on the death of the deceased employee, the respondent initiated the divorced proceedings under Section 13B of the Hindu Marriage Act, 1955 on 12.09.2012 for decree of divorce by mutual consent.
  • By Judgment dated 20.03.2013, the Learned Principal Civil Judge, Mandya granted the decree of divorce by mutual consent.
  • Immediately on the very next day i.e. on 21.03.2013, the respondent, on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground.

Taking note of the aforementioned chronology of dates and events, the Court opined that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained. Otherwise, as a married daughter she was not entitled to the appointment on compassionate ground.

Interestingly, the High Court had directed the appointing authority to grant compassionate   appointment to the respondent after interpreting Rule 3 of the Rules, 1996 by putting “divorced daughter” in the same class of an unmarried or widowed daughter.

The said judgment was, however, erroneous as per the ruling in N.C. Santhosh v. State of Karnataka, (2020) 7 SCC 617, wherein it was held that

(i) the compassionate appointment is an exception to the general rule;

(ii) no aspirant has a right to compassionate appointment;

(iii) 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;

(iv) 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;

(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.

Taking note of point number (v), the Court said that,

“… only ‘unmarried daughter’ and ‘widowed daughter’ who were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be ‘dependent’ of a deceased Government servant and that ‘an unmarried daughter’ and ‘widowed daughter’ only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant.”

Calling the High Court’s decision erroneous, the Court said that

“…even if it is assumed that the ‘divorced daughter’ may fall in the same class of ‘unmarried daughter’ and ‘widowed daughter’ in that case also the date on which the deceased employee died, the respondent herein was not the ‘divorced daughter’ as she obtained  the divorce by mutual consent subsequent to the death of the deceased employee.”

Hence, the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee.

[Director of Treasuries in Karnataka v. V. Somyashree, 2021 SCC OnLine SC 704, decided on 13.09.2021]

[1] 2.   Definitions:­

(1)   In   these   rules, unless the context otherwise requires:­

(a) “Dependent   of   a   deceased   Government servant” means­

(i) in   the   case   of   deceased   male   Government servant, his widow, son, (unmarried daughter and widowed daughter) who were dependent upon him; and were living with him; and

(ii) in the case of a deceased female Government servant,   her   widower,   son,   (unmarried daughter   and   widowed   daughter)   who   were dependent upon her and were living with her;

(iii) ‘family’ in relation to a deceased Government servant means his or her spouse and their son,   (unmarried   daughter   and   widowed daughter) who were living with him.

(2)     Words   and   expressions   used   but   not defined shall have the same meaning assigned to   them   in   the   Karnataka   Civil   Services (General Recruitment) Rules, 1977.

[2] Rule 3(2)(ii):­

(ii)   in the case of the deceased female Government servant;

(a) a son;

(b) an   unmarried   daughter,   if   the   son   is   not eligible or for any valid reason he is not willing to accept the appointment;

(c) the widower, if the son and daughter are not eligible or for any valid reason they are not willing to accept the appointment.

(d) a widowed daughter, if the widower, son and unmarried daughter are not eligible or for any valid reason they are not willing to accept the appointment.

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Appearances before the Court by:

For State: Advocate V.N. Raghupathy

For Respondent: Advocate Mohd. Irshad Hanif

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal: Mohd. Jamshed, Member (A), held that compassionate appointment cannot be equated with family pension. Slamming the respondents for their insensitive and inconsiderate attitude towards a person with 82% permanent disability, the Bench expressed,

“This correspondence between the 2nd and 3rd respondent indicates lack of any sensitivity and concern towards a physically handicapped person…the net result is that a physically handicapped person, whose parents have expired is being denied the family pension which is due to him as a matter of right in terms of extant rules and regulations.”

The father of the instant applicant Late Mr Hari Chand, used to serve in Horticulture Department, Central Public Works Department (CPWD) under Ministry of Urban Development as a Senior Mali and superannuated from service w.e.f. 31-07-2011. The applicant was aggrieved by the refusal of the respondents to include his name in Pension Payment Order (PPO) as a disabled son and for sanction of family pension in his favour.

The applicant was examined in Ram Manohar Lohia (RML) Hospital, Delhi by the Medical Board and declared as a case of ‘post-polio residual paralysis of both lower limbs’. His permanent physical impairment was declared as 82% and it was mentioned that he could perform desk jobs only. The applicant asserted that he was using crutches in both hands for walking and it was not possible for him to move without the help of an accompanying person. It was also submitted that he was unable to sit in a chair and could not use public transport/toilet and hence, he was not able to undertake any job in the office. Hence, he insisted that family pension be released to him.

The applicant had relied upon the OM dated 01-07-2013 issued by Ministry of Personnel, Public Grievances and Pension, Department of Pension and 4 OA No. 695/2019 Pensioner Welfare wherein it is clearly indicated that on acceptance of such request from permanently disabled children, the Head of Office will immediately issue order for grant of family pension. He had also relied upon the OM dated 27-01-2016 which says that the grant of family pension to disabled children is in no way equated to compassionate appointment.

Observing that the respondent had at one point found the reasons given by the applicant for his inability to undertake the desk job acceptable and, had recommended his case for grant of family pension yet the applicant was denied grant of pension, the Bench stated,

“This is indeed ironical as the case of family pension has already been recommended by the 2nd respondent.”

Noticing that the correspondence between the respondent 2 and 3 indicated lack of any sensitivity and concern towards a physically handicapped person, and that the respondents had based their objections only on the line mentioned in the medical certificate which says ‘he can perform only desk job’, the Bench opined that the respondents had denied the family pension to the applicant on account of sheer apathy, inaction and indecision.

“Equating grant of family pension to compassionate appointment is in itself fundamentally wrong…the contention of the respondents that the applicant had once been asked to apply for compassionate appointment, which he has refused and, therefore, he is not eligible for family pension is not supported by rules and is purely arbitrary.”

In the light of the above, the Bench held that the kind of apathy being shown towards a physically handicapped person by depriving him of his right and to get much-needed family pension for his survival for last more than 5 years, without any basis to say the least was injustice. Accordingly, the respondents were directed to grant family pension to the applicant within a period of three months without any arrears. However, in case of non-compliance by the respondent within three months further directions were made making them liable to pay interest at 9% for any subsequent delayed payment. [Sh. Mahesh Kumar Sharma v. Union of India, O.A. No.695/2019, decided on 24-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Applicant: Advocate: Mr. B.K. Berera

For the Respondents: Advocate: Mr. Hitesh Kumar Bagri

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of B.V Nagarathna and Hanchate Sanjeev Kumar, JJ. allowed the petition and remarked:

“no child is born in this world without a father and a mother. A child has no role to play in his/her birth.”

The facts are such that the petitioner/appellant being a son of his deceased was denied compassionate appointment on the ground that he is born out of second marriage of his father during subsistence of his first marriage. The decision is in line with a circular dated 23-09-2011 Clause 2 of Karnataka Electricity Board Employees’ Recruitment  (Appointment on Compassionate Grounds) Regulations,1997 (i.e.  “Regulations”).  Being aggrieved, the petitioner assailed the same in the writ petition and then by a review petition which upheld the decision. Being aggrieved by the dismissal of the writ petition as well as the review petition instant appeal was preferred.

Observations

The Court observed that the Regulations have been made by the rule making authority being conscious of the fact that an adopted son or daughter has the same rights in law as a son or daughter born to a deceased Board employee. But, under the Regulations, adopted children are expressly excluded from the scope of the appointment on compassionate basis, which is in the realm of policy.

The Court observed the expression ‘son’ and ‘daughter’ so as to include even on illegitimate son and daughter by various judgments of the Supreme Court for the purpose of consideration for compassionate appointment, and Regulation 2(1)(b) cannot restrict the expression ‘family’ in relation to a deceased Board employee to mean only his or her legally wedded spouse and their sons and daughters who were jointly living with him. Such a definition would run counter to Section 16 of the Act, which is Parliamentary legislation and also Articles 14, 15(1) and 16(1) as well as the Directive Principles of State Policy concerning children which would include all children, whether legitimate or illegitimate, to have equal opportunities. When the Parliament under Section 16 of the Act, has treated legitimate and illegitimate children on par and given them equal status, Regulation 2(1)(b) cannot restrict the expression family in relation to deceased employee to mean only his or her legally wedded spouse and children jointly living with him.

The Court relied on judgment Union of India v. V. R. Tripathi [(2019) 14 SCC 646] wherein it was held

“We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination. The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries — legitimate children. 

The High Court has proceeded on the basis that the recognition of legitimacy in Section 16 is restricted only to the property of the deceased and for no other purpose. The High Court has missed the principle that Section 16(1) treats a child born from a marriage which is null and void as legitimate. Section 16(3), however, restricts the right of the child in respect of property only to the property of the parents. Section 16(3), however, does not in any manner affect the principle declared in sub-section (1) of Section 16 in regard to the legitimacy of the child.”

The Court also observed that with regard to the right of a child born out of a void marriage irrespective of the personal law under which the marriage might have taken place to seek appointment on compassionate basis. No doubt, validity of a marriage is dependent upon the personal law applicable to the parties but there is also Special Marriage Act, 1954, which is not relatable to any personal law. It is a species of a uniform civil law applicable to marriages of persons irrespective of the religion they may belong to. Even under the said Act, there are the concepts of void and voidable marriages. Hence, it is necessary to protect the rights of children born from such void or voidable marriage to seek compassionate appointments de hors the personal law applicable to the parents of such a child.

The Court observed as per Section 26 of the Special Marriage Act, 1954 deals with marriage between any two persons solemnized under the said Act which is a void and voidable marriage (Sections 24 and 25 of the said Act respectively) but conferring legitimacy to children born out of such marriages. It is noted that the said provision also has an over-riding effect and a child born out of a void or voidable marriage is deemed to be a legitimate child.

The Court thus observed for the limited purpose of this case, we find that children born out of void and voidable marriages under other personal laws, where there is no provision for conferment of legitimacy, must also have equal protection of the law by treating them on par with children born out of void and voidable marriages under the Hindu Marriage Act or the Special Marriage Act, 1954, insofar as the appointment on compassionate basis is concerned, as interpreted by us, under the Regulations under consideration and in light of the judgment of the Supreme Court in V.R.Tripathi.

The Court thus directed to “consider the application made by the appellant herein in accordance with the observations made above and in accordance with law.”

[K Santhosha v. Karnataka Power Transmission, 2021 SCC OnLine Kar 12989, decided on 24-06-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances

For Appellants-Mr Subramanya Bhat

For Respondents- Mr Ravindra Reddy

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J., dismissed a petition which was filed aggrieved by the denial of compassionate appointment by communication dated 07-01-2020, as he had fathered a third child after the cut-off date i.e. 01-06-2002.

The petitioner’s father was working with the respondent – department and had died in harness on 29-06-2019. In the month of July, 2019 the petitioner had applied for an appointment on the compassionate ground under Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 (‘Rules of 1996’).

His request for a compassionate appointment had been turned down by the respondents as the petitioner had more than two children after the cut off date (01-06-2002).

Mr Anil Vyas, counsel for the petitioner, argued that the respondents had erred in rejecting petitioner’s candidature, as the ineligibility based on number of children has not been provided in the Rules of 1996. he further added that the Rules of 1996 have an overriding effect on all other rules and thus, disqualification on account of birth of third child after the cut off date cannot be an impediment in petitioner’s way of getting an appointment under the Rules of 1996. It was further argued by Mr Vyas that the petitioner had given one of his children in adoption on 04-12-2019 and thus, the disqualification, if any, does not continue anymore.

The Court slashed down the second contention of petitioner’s child been given in adoption stating that the same had been done on 04-12-2019, concededly after the death of deceased – employee and that too after submitting an application under the Rules of 1996 and this was nothing but an attempt to overcome the disqualification/ineligibility, which was attached with the petitioner. The Court further opined that petitioner having been given one child in adoption does not obliterate or remove the disqualification. The disqualification is based on the event or incident of giving birth to a third child. It is not based on number of living/existing children on the date of submitting application.

The Court perused Rule 7 of the Rules of 1996 and firmly held that a dependent has to fulfil general conditions prescribed in the relevant service rules to be eligible for appointment and since the petitioner has given birth to a third child after the cut off date, he fails to satisfy general conditions of the Rules of 2014.

The Court dismissed the petition holding that no illegality had been committed by the respondents rejecting the petitioner’s candidature for appointment on the compassionate ground under the Rules of 1996.[Shankar Lal Meena v. State of Rajasthan,  2021 SCC OnLine Raj 583, decided on 20-07-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna, J., allowed the petition and quashed the impugned endorsement.

The petitioners in the instant writ petition challenge the endorsement dated 23-12-2020 which declined to grant an appointment on compassionate grounds to the 1st petitioner and have sought for consequential direction by issuance of a writ in the nature of mandamus directing the respondents to consider the case of the 1st petitioner for an appointment on compassionate grounds qua his qualification.

Counsel for the petitioners Mr Ashwini O. submitted that the appointment on compassionate grounds was denied on the basis of a Rule that came about on 26-09-2017 which was long after the death of the breadwinner of the family and the application being given by the petitioners for appointment on compassionate grounds.

Counsel for the respondents Mrs M C Nagashree submitted that there is no right to the applicants to seek an appointment on compassionate grounds as it can be only in terms of the policy or the Rules as the case would be. Since there was no vacancy existing in the post of Second Division Assistant in any of the Aided Institutions, the appointment of the 1st petitioner was declined to be considered for the present.

The Court observed that consideration of applications for appointment on compassionate grounds in the State is regulated under the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996. In terms of the afore-extracted Rules appointment shall be confined to any post in Group-C or Group-D depending on the qualification specified for the post and appointment once made under these Rules shall be final.

The Court relied on judgment Canara Bank v. M .Mahesh Kumar, (2015) 7 SCC 412  wherein it was observed:

  1. ….it is apparent that the judgment specifically states that claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim. 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.

“….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.”

The Court further relied on Lalitha Laxman Kundargi v. Managing Director, 1999 SCC OnLine Kar 329  wherein it was observed:

“…..9. Therefore, the proper and equitable way in which Rule 9 of the new scheme dated 3.4.1997 can be interpreted is thus; If the application filed by the dependent family member under the old scheme is pending on the date when the new scheme came into force, on account of any negligence or want of compliance by such applicant, it should be disposed of under the new scheme. If the application was kept pending by the Corporation for no fault of the applicant, but due to delay in consideration by the Corporation and if the old scheme is more beneficial to the applicant, the applicant is entitled to require the employer to consider such application, in terms of the old scheme which was in force on the date of death and date of application.”

The Court observed that in the light of the law declared so far by Courts, the application given by the petitioners on 11-09-2015 had to be considered qua the Rules obtaining at that point in time and not the one that was subsequently notified and now made use of to deny appointment to the 1st petitioner. Therefore, on both the counts, one being the change in the Rules and non-existence of vacancies, on which the impugned endorsement is issued is untenable and is consequently rendered unsustainable. Compassionate Appointment Rules also depict grant of appointment to the applicant on compassionate grounds in Group-C or Group-D owing to the qualification possessed.

The Court further observed that the delay of 6 years is not attributable to the petitioners as the application for compassionate appointment was given within two months after the date of death of the father. Keeping the application pending for years or months will defeat the very object of framing the Rule for grant of appointment on compassionate grounds. Therefore, the need for immediate consideration of such representations/applications for appointment on compassionate grounds is paramount.

The Court observed that if giving of an application within one year is held to be mandatory and binding on the applicant in terms of Rule 5, so would be sub-Rule (2) of Rule 6 upon the State and its instrumentalities. Though the Rule employs the words ‘as far as possible’ it is preceded by the word “shall”. Looking at the mandatory duty cast upon the applicant to file an application within one year from the date of death of the bread winner, the same duty is required to be mandatorily followed by the State in terms of sub-rule (2) of Rule-6 in the wake of the object of framing the rule and the duty that enjoins such object. Any unreasoned or unjustifiable delay on the part of the Authority competent to consider would make such Authority personally responsible to pay damages to such applicant by way of wages that the applicant would be entitled to, if an appointment had been considered and granted.

The Court thus held “Mandamus is issued to the respondents to reconsider the case of the 1st petitioner for appointment on compassionate grounds in terms of sub-rule (4) of Rule 4 of the Rules”[Hruthik N. v. Deputy Director of Public Instructions, 2021 SCC OnLine Kar 12910, decided on 12-07-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where a woman had sought compassionate appointment for her son 10 years after her husband had gone missing, the bench of L. Nageswara Rao and S. Ravindra Bhat, JJ refused to grant the said relief and held,

“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.”

Background

The respondent’s husband was an Operator, Helper Category (Category II) at Gidi Washery. He had gone missing in the year 2002. A charge-sheet was issued by Central Coalfields Limited to the Respondent’s husband for desertion of duty since 01.10.2002 and an inquiry was conducted in which the Respondent participated on behalf of her husband. On the basis of Inquiry Officer’s report, the Respondent’s husband’s services were terminated with effect from 21.09.2004.

The Respondent filed a suit in the Court of the Additional Munsif, Hazaribagh seeking a declaration of civil death of her missing husband. The said suit was decreed with effect from the date of filing of the suit i.e. 23.12.2009 by a judgment dated 13.07.2012.

The Respondent then made a representation on 17.01.2013 seeking compassionate appointment for her son which was rejected on 03.05.2013 on the ground that the Respondent’s husband was already dismissed from service and therefore, the request for compassionate appointment could not be entertained.

Jharkhand High Court’s decision

The High Court was of the opinion that the reasons given by the employer for denying compassionate appointment to the Respondent’s son were not justified. There was 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.

Supreme Court’s ruling

Explaining the object behind grant of compassionate appointment, the Court explained,

“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[1].”

However, 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.

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.

In the present case, it cannot be said that there was any financial crisis created immediately after Respondent’s husband went missing in view of the employment of the Respondent. Though the Court agreed with the High Court’s views that the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, it was of the opinion 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.”

[Central Coalfields Limited v. Parden Oraon, 2021 SCC OnLine SC 299, decided on 09.04.2021]

[1] Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138

*Judgment by: Justice L. Nageswara Rao

Know Thy Judge| Justice L. Nageswara Rao

Case BriefsHigh Courts

Orissa High Court: Biswanath Rath, J. dismissed both appeals being devoid of merits.

The facts of the case are such that the deceased, at about 8 P.M. was proceeding to perform his duty by a bicycle on left side of the road near Balugaon Bazaar on N.H.5 when the offending Truck came in high speed in a rash and negligent manner and dashed against the deceased from his backside resulting in his death.

A claim petition by the claimants i.e. the legal heirs of the deceased was filed seeking compensation which was thereby granted by the Tribunal. Assailing the said order, the insurance company filed one appeal primarily on the question of quantum, and another appeal was filed by the legal heirs for enhancement of compensation

Two appeals have been filed which was collectively taken by the Court and disposed off by the common order.

Counsel for the insurance company Mr G Mishra submitted that the fact of future gain to the family on account of death of the deceased by way of compassionate appointment given to the wife should have also been kept in mind of the Tribunal while granting compensation and future prospects.

Counsel for the claimants Mr KK Das submitted that widow’s compassionate appointment and getting salary/some benefits on the death of her husband not to be deducted from gross income while calculating compensation

The Court relied on judgment Helen C. Rebello v. Maharashtra State Road Transport Corporation and observed that  “bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one’s death but all these have no co-relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as ‘pecuniary advantage’ liable for deduction.”

 The Court further relied on Vimal Kanwar v. Kishore Dan, 2013(3) TAC6 (SC) and observed that “Compassionate appointment” can be one of the conditions of service of an employee, if a scheme to that effect is framed by the service leaving behind the dependents, one of the dependents may request for compassionate appointment to maintain the family of the deceased employee dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one’s death and have no correlation with the amount receivable under a statute occasioned on account of accidental death.”

The Court thus held “this Court finds none of the grounds agitated by the Insurance Company remains sustainable in the eye of law.” 

The Court further held “the bereaved family got the premature superannuation benefits on the head of the deceased and also an employment under rehabilitation assistance scheme, this Court observes grant of Rs.1,00,000/- towards funeral expenses be considered as compensation towards funeral expenses, loss of estate as well as loss of love and affection. In the above view, this Court is not inclined to grant any further amount on the above heads except directing to treat grant of Rs.1,00,000/- (Rupees one lakh) only towards funeral expenses as expenses on the head of loss of estate and for loss of love and affection as well as loss of consortium”. 

In view of the above, both the appeals were dismissed.[S. Divya v. P. Ramalingeswar, MACA Nos. 593 & 774 of 2016, decided on 05-04-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Meghalaya High Court: H. S. Thangkhiew J., dismissed the writ petition being devoid of merits.

The facts of the case are such that the petitioner herein is the eldest son of the deceased employee who expired when the petitioner was still a minor aged 11(eleven) years old. The petitioner on attaining majority applied for appointment on compassionate ground in the year 2009, and it was only in 2013 that the petitioner was informed vide letter dated 21.03.2013 by the respondent 2 that he was placed at Sl. No. 19 in the list for consideration for appointment on compassionate ground. It was further informed by letter dated 10.11.2014 that after review by the Compassionate Appointment Committee, the petitioner was placed at Sl. No. 37, and thereafter down the year so much so that the petitioner is now placed at 10.1 and it is the norm that a person whose indigent index is less than 10 (points) is no longer considered eligible for appointment. Hence the petitioner herein has preferred this application before this Court on the grievance that his application for appointment on compassionate ground has not been duly considered and that he has been deprived of the same due to the arbitrary acts of the respondents.

Counsel for the petitioner submitted that the respondents have acted arbitrarily and delayed his case which has resulted in his low indigent index ranking and the respondents have not complied with the prescribed Scheme contained in the Office Memorandum dated 09-10-1998 issued by the Ministry of Personnel, Public Grievances & Pension (Department Personnel & Training), for consideration of appointment which has resulted in the deprivation of the petitioner of gainful employment.

Counsel for the respondents submitted that the writ petition is hopelessly barred by delay and laches, inasmuch as, the deceased employee had expired in 2003, the application for compassionate appointment was only made in 2009, i.e. 6(six) years after the death of the employee, and that the petitioner has come to Court only on July, 2017. It was further submitted that this delay defeats the very purpose of compassionate appointment which had been formulated to provide immediate succor to the family of the bereaved to tide over the crisis caused due to the death of an employee.

The Court relied on judgment Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138, wherein it was held:

“2…. 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 entitle 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”

 “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.”

The Court thus observed that the object of compassionate appointment which is an exception to Article 16 (1) of Constitution of India and as has been reiterated by a catena of judgments of the Hon’ble Supreme Court, is to address the immediacy of the need and it is not meant to entertain stale claims. A scheme for the grant of compassionate appointment does not constitute a reservation of a post in favour of a member of the family of the deceased employee, and there is no general right which can accrue to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority.

The Court thus held “no case has been made out by the petitioner for issuance of any direction or for any interference by this Court. Further, no discernable grounds have been made out to show that there was any failure on the part of the respondent No. 1 & 2 in complying with the Scheme for compassionate appointment, nor any materials placed on record to substantiate the allegations that there was any illegality or arbitrariness on the part of the respondents.”

In view of the above, writ petition was dismissed.[Dhaneswar Medhi v. Union of India, 2021 SCC OnLine Megh 15, decided on 03-02-2021]

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Case BriefsHigh Courts

Allahabad High Court: J.J. Munir, J., addressed an issue with regard to whether a posthumous child is entitled to compassionate appointment under Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.

Petitioner in the instant application claimed compassionate appointment under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.

Petitioner a posthumous child, who was in his mother’s womb at the time when his father passed away in a road accident. The application with regard to the compassionate appointment was made by petitioners mother in the year 2003.

The above-referred application was dismissed by the State Government in view of the same being preferred with a delay of 11 years, 10 months and 3 days, reckoning the delay after giving the benefit of relaxation of five years provided under the Rules of 1974.

Analysis and Decision

Bench in view of the facts and circumstances stated that:

A perusal of the right, which a member of the family of the deceased to compassionate appointment has been given by Rule 5 of the Rules of 1974, makes it clear that it is a member of his family who is entitled to claim compassionate appointment when the deceased, who is in harness and a Government employee, suddenly passes away.

 Further, the Court added that an unborn child does have rights under the law relating to property because it is said that an unborn child is an en venture sa mere; but, to extend to an unborn child the right to compassionate appointment would be contrary to the plain intendment of the Rules of 1974. Even otherwise, the welfare measure under the said rules, though construed liberally in case of members of the deceased’s family who have not been able to tide over the financial crisis till a minor attains the majority and applies under the rules, in the opinion of this Court, cannot be stretched to a limit where an unborn child is also to be granted a right to apply under the Rules of 1974.

High Court opined that an extension of the welfare approach under the Rules of 1974  to that limit would do more harm than good to the rights of the citizen, who otherwise have a right to consideration for appointment to posts under the State in accordance with the recruitment rules, postulating equality of opportunity but no concession.

Hence, Bench held that a posthumous child does not qualify for a minor and a member of the deceased Government servant’s family under the Rules of 1974, entitling him to be considered for compassionate appointment, once he attains majority.

Therefore, the petition was dismissed in view of the above discussion. [Avanesh Kumar v. State of U.P., 2020 SCC OnLine All 144, decided on 09-01-2020]

Case BriefsHigh Courts

Jharkhand High Court: S.N. Pathak, J., while dismissing the present petition, reiterates, “Compassionate Appointment is a concession and not a right.”

Husband of the petitioner was an employee of the respondent company who died in harness on 23-03-1994. After the said demise, petitioner applied for a compassionate appointment along with required documents before the Project Officer vide her representation dated 10-10-1994. Though the petitioner was fully eligible for a compassionate appointment being the dependent of the deceased employee, the case of the petitioner was not considered and she was informed that she is entitled to monetary compensation to the tune of Rs 2000 per month till the date she attains the age of 60 years and further directed her to be present before the appropriate authority with required documents vide letter dated 13-12-1997. Thereafter, vide letter dated 23-03-1998, she refused to take the monetary compensation and instead requested the respondents to give compassionate appointment to her as she was eligible for the same being below the age of 42 years on the date of demise of her husband, as per the provisions of NCWA. It is the specific case of the petitioner that despite her request for compassionate appointment, neither the monetary compensation nor compassionate appointment has been provided to her. Hence, she has been constrained to knock the door of the Court, by way of the present writ petition.

Court did not consider appropriate to interfere in the present petition on primarily two grounds;

  1. Petitioner has approached this Court after more than 20 years from the date of death of her husband for compassionate appointment. Court considered the case of Umesh Kumar Nagpal v. State of Haryana, (1994) SCC 4 138, wherein the Court said, “…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.”
  2. Supreme Court, in a catena of judgments, has held that appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for under the Rules. Reliance was placed on the case of General Manager, State Bank of India v. Anju Jain, (2008) 8 SCC 475 wherein it was said, “Compassionate Appointment is a concession and not a right.”

Answering whether the petitioner is entitled to monetary compensation or not, Court cited the case of Etwari Devi v. Bharat Coking Coal Ltd., 2008 (1) JCR 403, with similar facts, where it was held, “the appellant-widow applied for compassionate appointment as far back as in 1992 immediately after the death of her husband. The application was kept pending by the respondents because of police verification and it was considered only in 2006. In our considered view, the appellant must get the benefit of NCWA-V and she is entitled to get monetary compensation.”[Jirwa Ghatwarin v. Bharat Coking Coal Ltd., 2019 SCC OnLine Jhar 2952, decided on 10-12-2019]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Sureshwar Thakur and Chander Bhusan Barowalia JJ., while allowing the present petition said, “Marriage neither alters the relationship between the married daughters with her parents nor creates severance of a relationship. A son remains a son and his marriage does not alter or severe his relation with his parents, likewise, a daughter is always a daughter to her parents, her marriage also does not alter or severe her relation with her parents. If the State even draws a thin line of distinction based on gender, then that line has to withstand the test of Article 15 of the Constitution of India, which prohibits discrimination on the basis of religion, race, caste, sex or place of birth.”

 Facts

Facts of the case are briefly enumerated herein;

  1. That on 08-05-2019, Thakur Dass, father of the petitioner, who was a class IV employee in the office of District Ayurvedic Office, Kullu, died in harness.
  2. That the petitioner, her sister and mother are the survivors of Thakur Dass and there is no male member in their family.
  3. That as per the petitioner, she, her mother and sister, were dependant on late Shri Thakur Dass, and her mother and sister are unwilling to opt employment.
  4. That the petitioner, who is M.A. (Hindi) and has diploma in Computers, applied through an application for compassionate appointment, duly supported with the affidavits of her mother and sister purveying their ‘No Objection’.
  5. That the annual family income of the petitioner’s family is Rs 63000 falling well within the prescribed limit of Rs 225000, for a family of four members.
  6. That the cause of action arose on 22-06-2020 when the application of the petitioner was rejected on the premise that “there is no provision in the Policy for grant of employment assistance to the married daughter of the deceased Government employee.”
  7. That the petitioner has approached the present forum so as to declare the said policy as unconstitutional on the ground of being gender discriminatory, unjust and in contravention with the principles of equality.

Contentions

Counsel for the petitioner, Maan Singh, argues that the aforementioned clause of the policy has no rationale with the object sought to be achieved (of providing compassionate appointment). Moreover, just as a son of an employee who dies in harness, remains son throughout, likewise, a daughter remains daughter irrespective of any contingency or change in marital status. It was argued, “A married daughter cannot be discriminated merely because she is married, whereas no such rigor is applicable to a married son. Marriage alone cannot constitute a ground for discrimination and constitutionally State cannot be allowed to use this assumption of marriage, being a rationale for hostile discrimination denying benefits to a married daughter, especially in the wake of the fact that equal benefits are being extended to a son, whether married or unmarried.”

Counsel for the respondents, Hemant Vaid, J.S. Guleria and Hemanshu Mishra, argued that the petitioner is ineligible for appointment on compassionate grounds as the policy is only applicable to the dependents of the deceased Government employee and the marriage of the petitioner, in this case, disentitles her to be counted as a dependent of the deceased government employee. As per the respondents, elements of the policy of compassionate appointment are not only based on financial circumstances, but also on social circumstances such as in the present case.

 Observations

In addition to its decision, the Court cited the following cases;

In a judgment by Uttranchal High Court; Udham Singh Nagar District cooperative Bank Ltd. v. Anjula Singh, it was said, “Non-inclusion of a ‘married daughter’ in the definition of a ‘family’, under rule 2(c) of the 1974 Rules and the note below Regulation 104 of the 1975 Regulations, thereby denying her the opportunity of being considered for compassionate appointment, even though she was dependent on the Government servant at the time of his death, is discriminatory and is in violation of Articles 14, 15 and 16 in Part III of the Constitution of India.”

High Court of Madras in, N.Uma v. The Director of Elementary School Education, observed, “(…) artificial classification between married son and married daughter only on the basis of sex would tantamount to gender discrimination. If a married son is considered to be a part of the family, this Court is at a loss to understand as to why a married daughter should not be included in the definition of family.”

Vimla Srivastava and others 2016(1) ADJ 21 (DB), “Marriage does not have and should not have a proximate nexus with identity. The identity of a woman as a woman continues to subsist even after and notwithstanding her marital relationship. The time has, therefore, come for the Court to affirmatively emphasis that it is not open to the State, if it has to act in conformity with the fundamental principle of equality which is embodied in Articles 14 and 15 of the Constitution, to discriminate against married daughters, by depriving them of the benefit of a horizontal reservation, which is made available to a son irrespective of his marital status.”

Reflecting upon the object of having the policy for compassionate appointment and the duty of the State to ensure welfare for all, the Court under Para 21 of the judgment said,  “The object of compassionate appointment is not only social welfare, but also to support the family of the deceased government servant, so, the State, being a welfare State, should extend its hands to lift a family from penury and not to turn its back to married daughters, rather pushing them to penury. In case the State deprives compassionate appointment to a married daughter, who, after the death of the deceased employee, has to look after surviving family members, only for the reason that she is married, then the whole object of the policy is vitiated.”

 Decision

While allowing the present petition and issuing necessary directions to the respondent authorities, the Court held, “After incisive deliberations, it emerges that core purpose of compassionate appointment is to save a family from financial vacuum, created after the death of the deceased employee. This financial vacuum could be filled up by providing compassionate appointment to the petitioner, who is to look after the survivors of her deceased father and she cannot be deprived compassionate appointment merely on the ground that she is a married daughter, more particularly when there is no male child in the family and the petitioner is having ‘No Objection Certificates’ from her mother and younger sister, the only members in the family.”[Mamta Devi v. State of Himachal Pradesh, 2020 SCC OnLine HP 2125, decided on 28-10-2020]

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Case BriefsHigh Courts

Gauhati High Court: Achintya Malla Bujor Barua J., while allowing the present petition for regularization, placed reliance upon the judgment dated 13-03-2019 in WP (C) 7779 of 2018, by the present Court, which provided that “any appointment made under the die-in-harness scheme under compassionate ground is to be made on regular basis.”

 Brief Facts

The petitioner was appointed as a Work Charge (Tracer) on compassionate ground, subject to fulfilment of certain conditions laid down in the office memorandum dated 09-09-1983. It is stated and admitted that the petitioner fulfilled all the conditions as laid down in office memorandum mentioned hereinabove. The petitioner further states that although she was appointed on compassionate ground, her appointment had not been regularized. Furthermore, the Deputy Secretary, PWRD vide the communication dated 30-03-2019, informed that the Finance Department had rejected the claim of the petitioner for regularization. Being aggrieved by the said decision, the petitioner has approached the Court through the present petition.

 Issue

Whether the present petition for regularization maintainable?

 Decision

While allowing the present petition, the Court said, “the claim for compassionate appointment can either be rejected or accepted as per law, but once it is accepted the appointment is understood to be regular appointment.” The Court further placed reliance on the judgment of the present Court in an earlier matter and also issued necessary directions to the PWRD and Finance Department.[Ashmia Dhar v. State of Assam,  2020 SCC OnLine Gau 4150, decided on 19-10-2020]

Advocate for the petitioner:   B. D. Das, Advocate

Advocate for the respondent:  P. Nayak, Finance Department, SC PWD

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Case BriefsHigh Courts

Jharkhand High Court: Deepak Roshan J., allowed the petition on merits.

 The facts of the case are such that the husband of the petitioner was appointed on the post of Loader on Hudag Colliery. The husband of the petitioner left the place of work without intimation and was found to be mentally ill later. Later, after being treated and a certificate being issued to that effect, he died of harness suddenly on 11-12-2011 leaving behind the petitioner as his widow and four children. Pursuant to this, an application by the petitioner was filed for employment of one of her sons on grounds of compassionate appointment under the provisions of National Coal Wage Agreement (NCWA for short) which was thereby rejected vide letter dated 25-09-2013. Aggrieved by the same, instant petition has been filed to quash the impugned letter and a direction to be issued for employment of his son.

Counsel for the petitioner Ajit Kumar submitted that the allegations leveled against the petitioner’s husband with regards to him being absent from duty without any intimation stand no ground for rejection of compassionate appointment to his son as no disciplinary proceedings were conducted against him then and his name was also struck off from the roll only on 15-03-2012 which is only after petitioner made an application for compassionate appointment i.e. on 09-01-2012. He further submitted that as the dead husband was the only bread earner of the family, it is a fit case for a compassionate appointment.

Counsel for the respondents D K Chakraverty submitted that at this stage to allow the son for employment on compassionate grounds would frustrate the objective and legislative intent as the husband of the petitioner was absent for 8-9 years without any information. However, the Counsel did not dispute the submissions regarding the struck off date being after the date of application. He even agreed that no disciplinary action was taken against the husband of the petitioner.

After perusal of facts and submissions the Court observed that this is a beneficial legislation and totally governed by the National Coal Wage Agreement and as such, the general principle of compassionate appointment should not be strictly applicable.

The court directed the respondent to consider the application of the petitioner for appointment of any of her sons as per NCWA provided the other criteria are fulfilled as per the Company policy and NCWA.

In view of the above, petitions stand allowed and disposed of.[Jai Murti Devi v. Central Coalfields Limited, 2020 SCC OnLine Jhar 768, decided on 20-08-2020]

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Case BriefsHigh Courts

Gauhati High Court: Achintya Malla Burjor Barua, J., while allowing a Writ Petition, issues direction to the Director-General of Police (DGP), Assam to consider the application moved for compassionate appointment after the lapse of fifteen years.

Facts

The father of petitioner, who was serving in the Assam Police, died in harness on 11-06-2006. At the time of death, the petitioner was a minor. Therefore, no application for a compassionate appointment could be made. On 20-02-2020, after the lapse of nearly fifteen years, the mother of the petitioner moved an application before the DGP, Assam, stating about the death of her husband on 11-06-2005 and the subsequent challenges faced in raising her family of three children. A statement reflecting her efforts towards the attainment of relief was further made. Upon no response by the concerned authorities, the present Writ Petition was preferred with a prayer that a direction be issued to the respondent authorities to address the grievance of the petitioner-applicant.

Contentions

It was pleaded by the counsel for the petitioner that the requirement of making an application for compassionate appointment was not in place in the year 2005 and the claim of the petitioner, should therefore be calculated not from the year of death but from an appropriate subsequent date.

Respondent argued that the statutory limitation against moving an application for compassionate appointment is one year and given to the fact that the said application falls beyond that, the petition is liable to be rejected.

Decision

While allowing the Writ Petition, the Court directed the respondent authority to at least consider the application made by the petitioner. It further clarified that the said direction is in no manner an obligation for the authority to appoint the petitioner and that the DGP is at liberty to evaluate, examine and decide the claims applying his wise sense of judgment.[Rakesh Deka v. State of Assam, 2020 SCC OnLine Gau 3382, decided on 07-08-2020]

Case BriefsHigh Courts

Jharkhand High Court: Dr S. N. Pathak J. allowed a writ petition and directed the respondents to consider the circular of a later date to be a reference point for rejection or otherwise, subject to its applicability, if any.

The factual matrix of the case is that the father of the petitioner was working under Road Construction Department and died in harness on a fateful day subsequent to which the petitioner represented before the respondents for consideration of his case for appointment, but on rejection of the same filed a writ petition which was disposed off directing respondents to consider the case of the petitioner vide an office order dated 04-03-1983 issued by the Superintending Engineer, Road Construction Division, Jamshedpur. In compliance of the order the case of the petitioner was considered and rejected by the respondents on the ground that petitioner does not fulfill the requisite qualification. Aggrieved by the same, the petitioner approached the present Court for a direction upon the respondent to consider the case of the petitioner for compassionate appointment.

Shekhar Prasad Sinha, the counsel for the petitioner submitted that a circular dated 01-12-2015 having Clause 9 says that even if the requisite qualification of 10th pass was lacking by the petitioner, it was incumbent upon the respondents to consider the same, subject to confirmation of obtaining the requisite qualification within stipulated time. He further submitted that the case of the petitioner has been rejected in view of the Circular of the Finance Department dated 02-09-2011 whereas it should be considered in view of circular dated 01-12-2015. Hence the rejection was on illegal ground and is not tenable in the eyes of law.

The counsel for the respondents, Prashant Kr. Singh opposed the petitioner saying that the petitioner does not fulfil the requisite qualification as per the Circular of Finance Department 02-09-2011 and as such, same has been rejected.

The Court, in view of the facts and arguments, observed that since the petitioner is relying on the circular dated 01-12-2015 and petitioner’s case was rejected on 21-11-2016, which is after coming into force of Circular dated 01-12-2015 and as such, it was incumbent upon the respondents to consider the latest Circular of the Government, subject to applicability. The Court further directed the respondents to consider the case of the petitioner in view of Circular dated 01-12-2015, subject to applicability.

In view of the above, writ petition was disposed of. [Fagu Charan Gope v. State of Jharkhand, 2020 SCC OnLine Jhar 254, decided on 27-02-2020]

Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of Aparesh Kumar Singh and Kailash Prasad Deo, JJ. dismissed the writ petition being devoid of merits.

Brief facts of the case are that the father of the applicant died on 24.08.2009. After which his mother filed an application dated 13.04.2010 for grant of compassionate appointment in his favour as the deceased employee died leaving behind a widow, two sons and one married daughter. The name of the applicant was at serial number 30 out of 73 persons and 19 out of 59 candidates in 2012 and 2013 respectively. 

Now by the impugned order dated 21.05.2015, the cases of applicants got rejected because they have been considered five and they could not find place in the list of deserving candidates, either in view of non-availability of vacancies or more deserving persons listed above. The Tribunal rejected the arguments of the applicants and held the applicant has received due consideration along with others and no case of discrimination holds ground. 

The applicant being aggrieved by an order passed by Central Administrative Tribunal, seeking quashing of the order of rejection of compassionate appointment dated 21.05.2015 has preferred this writ petition.

The counsel for the petitioner, Ajay Kumar Pathak, submitted that the claim of compassionate appointment has been rejected on arbitrary grounds. Proper evaluation of the claim as per the defined yardstick has not been made. Learned Tribunal should have accorded sympathetic consideration since the father of the applicant had died on 24.08.2009 in harness.

The counsel for the respondent, Laxman Kumar, has opposed the prayer. He submitted that applicant’s claim was considered as per the uniform defined criteria on five occasions, one after the other on applications made for reconsideration. The previous orders of rejection were not challenged.

The Court observed that in the matter of compassionate appointment, vacancies are limited for a particular year out of the total post in the cadre i.e., 5%. Applicant’s claim was considered four times earlier and each time he did not find place amongst the candidates falling within the vacancies for that year against the quota of compassionate appointment. Applicant has not been able to show that he had a better claim then the other candidates above in the list. Moreover, the earlier orders of rejection were also not challenged and had become stale.

In view of the above, the Court decided not to interfere in the impugned order passed by the learned CAT and dismissed the writ petition. [Mukesh Kumar Das v. Union of India, 2020 SCC OnLine Jhar 231, decided on 02-03-2020 ]