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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]


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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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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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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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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]

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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]

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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 ]

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Punjab and Haryana High Court: Ritu Bahri, J. partly allowed the petition with the directions that the petitioner was entitled to compensation when their plea for the compassionate appointment was rejected by the respondents.  

The husband of the petitioner was working with Haryana Police as Head Constable. He expired on 22.7.1998. His son was a minor at the time of his death. After attaining the age of majority in 2005, his son made an application for compassionate appointment and submitted all the relevant documents along with application. This claim was rejected on the ground that as per Instructions dated 28.2.2003 regarding Ex-gratia Appointment Rules, 2003 as per Clause 6(1) (b) the same had become time barred. 

The petitioner relied on the new policy dated 30.11.2005 “Haryana Compassionate Assistance to the Dependents of Deceased Govt. Employees Rules, 2005” and the notification dated 01.8.2006, whereby new rules known as Haryana Compassionate Appointment to the Dependents of Deceased Government Employee Rules 2006 was published by the State Government. The petitioner served a legal notice for grant of compassionate appointment as well as financial assistance. The Department in their reply to the said legal notice rejected the claim by saying that a compassionate appointment could not be given since any post could not be kept reserved for any minor child of a deceased employee. The petitioner also relied on Instructions dated 16.3.2011, whereby Chief Secretary to Government of Haryana as a one time measure had given relaxation for applying for ex gratia compensation in cases before 01.08.2006. As per these Instructions, a decision was taken that the Government was to reconsider all the old cases where the family of the deceased under Rule 4 (2) and 6(1)(c) of Rules 2003 and under Rule 4(2) and 6(4) of the Rules 2005 of the Ex-gratia Scheme could not exercise option within time due to lack of requisite knowledge and other reasons and because of which the family of the deceased could not avail the benefit under Ex-gratia Scheme as it became time barred.

The respondents stated that they had offered the petitioner some financial assistance, which the petitioner refused to accept and urged for the appointment of her son. While rejecting the case of the petitioner for ex-gratia appointment, reference was made to Clause 6 (1) (c) of Rules 2003. A perusal of these Rules showed that the Head of the concerned Department had to prepare the list of dependents which were valid for three years and appointments were to be given by the Department strictly in accordance with seniority so maintained. 

The only benefit that the petitioner could get was the payment of ex-gratia amount offered with regard to the Ex-gratia Appointment Rules 2003, as per Clause 6(1)(b) the same has become time-barred. Therefore, the question of grant of appointment on compassionate grounds did not arise. 

In view of the above-noted facts, the instant petition was partly allowed with the direction that it was the duty of the State Government after rejecting the case of compassionate appointment of petitioner, to give them Rs 2.5 lacs and that the petitioners were entitled for interest @ 6% interest per annum on the financial assistance from 01.12.2004 till the payment was made.[Asha Rani v. State of Haryana, CWP No. 2838 of 2017, decided on 14-12-2019]

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Allahabad High Court: Rajesh Singh Chauhan, J. while allowing the writ petition issued a writ in the nature of mandamus so as to command the opposite parties to reconsider the claim of the petitioner.

In the instant case, Nikhat Jahan, the petitioner’s request for appointment under Dying-in-Harness Rules was denied for the reason that she is a ‘divorced daughter’. Her father died on 19-6-2016.

She submitted that earlier her claim was rejected on 7-2-2017 for the reason that ‘divorced daughter’ does not come within the definition of “family” but such order was set aside by this Court vide judgment and order on 9-2-2018 in Service Single No.4418 of 2017 with the direction to the competent authority to consider the case of the petitioner afresh in view of the settled proposition of law, which was settled recently.

When the petitioner produced a certified copy of the aforesaid order, her claim was rejected in view of the dictum of the Supreme Court of 29-7-2016 passed in a special leave to appeal. To this, the petitioner submitted that the aforesaid dictum does not apply to the instant case.

The Court referred to Kusum Devi v. State of U.P., 2009 SCC OnLine All 1941  It was held that a divorced daughter is entitled to compassionate appointment. “A divorced daughter, if dependent upon her father, cannot be excluded and has to be included within the meaning of the word ”family’ since such a ”divorced daughter’, is dependent upon her father, has to be treated at par with an unmarried daughter or widowed daughter as all of them continue to be the liability of their father as member of the family of their ”father’.” The same was held in State of U.P. v. Jayanti Devi, passed in Special Appeal Defective No. 1298 of 2017.

In the instant case expression “Unmarried” used in Rule 2(c) of U.P. Recruitment of Dependant of Government Servants Dying in Harness Rules, 1974, was considered. Normal and common meaning of expression “Unmarried” is “not married” or “Single”. In the Wharton’s Law Lexicon 15th Edition, the expression “Unmarried” has been defined as: – “Unmarried, is a term of flexible meaning; prima facie it means ‘never having been married’.

As per Merriam Webster’s Collegiate Dictionary, 11th edition, “unmarried” means ‘not now or previously married’ or ‘being divorced or widowed’. In Stroud’s Judicial Dictionary of Words and Phrases, 7th edition, the primary meaning of ‘unmarried’ is ‘never having been married’ or ‘without ever having been married’ and the secondary meaning is ‘having no spouse living at the material time’. It is a word of flexible meaning, and slight circumstances could be sufficient to give the word its secondary meaning.

From the above explanations, it is clear that the term ‘Unmarried’ has flexibility in its meaning and it does not only mean “not married” or “single” or “never married”, it also means “not married on relevant date “or “widow” or “widower” or “divorcee”.

In context of the present case, the Court observed that a widow remains to be part of her husband’s family even after the death of such husband, whereas upon the marriage being dissolved, the divorcee daughter does not continue to be a part of the family of her divorced husband and would continue to remain single unless she remarries.

Further, under Rule 2(c) of Rules of 1974, there is no express exclusion that a “divorced daughter” is not entitled to appointment under the Rules.

Therefore, the Court directed the opposite parties to reconsider the claim of the petitioner for compassionate appointment strictly in terms of judgment and order of 03.01.2019 passed by this Court in Special Appeal Defective No. 673 of 2018; State of U.P. v. Noopur Srivastava, with the expedition, preferably within a period of one month from the date of production of a certified copy of the order.[Nikhat Jahan v. State of U.P., 2019 SCC OnLine All 3036, decided on 21-08-2019]

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Patna High Court: Ashutosh Kumar, J. dismissed the petition saying that there was no merit in the petition and the case could not be considered afresh.

The petitioner filed a petition to for directions to be made to the respondent authorities to appoint him as a  Class-IV employee on compassionate grounds , as his father had died working as a

Chowkidar, in the year 1995.  After the death of the petitioner’s father, an application was filed for compassionate appointment by his elder brother, which was allowed but later, the petitioner’s brother did not pursue the matter any further. An application was then filed after seven long years by the petitioner’s brother that in his place, his younger brother i.e., the petitioner be considered for appointment.

The counsel for the State contended that considering the condition of the family, help was offered to them in the form of compassionate appointment to one of the dependents of the deceased employee, and the department had recommended the appointment of the elder son of the deceased employee. It was the duty of the elder son to have reported to the authorities he was not capable of discharging the aforesaid responsibility. The act of approaching the authorities in the year 2010 and this Court of law in the year 2019 denotes that the family was not in need of any help in the form of compassionate appointment.

The Court held that grant of compassionate appointment is not a mode of appointment but only a concession to the family of the deceased employee in order to bail it out from the financial distress. Such compassionate appointment was given in terms of the scheme framed in the department for grant of such employment and the department cannot sway from the rules as it was not a regular case of appointment. The dominant purpose behind the grant of such appointment is to alleviate the immediate difficulty of the family of the employee who died in harness, leaving the family on the brink of starvation/destitution.

Since the death took place in the year 1995 and the matter was not pursued despite a recommendation for the petitioner’s brother by the department for being considered, the case of the petitioner cannot now be considered afresh.

In view of the above-noted facts, the instant petition was dismissed. [Ajay Kumar Yadav v. State of Bihar, 2019 SCC OnLine Pat 1434, decided on 19-08-2019]

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Patna High Court: Ashutosh Kumar, J. directed the petitioner to make a representation before the municipal corporation to be considered for appointment on compassionate ground.

The petitioner was the daughter of a man who was working as Pump Khalasi with the Municipal Corporation of Munger. Her father, the employee, died on 09-10-2014. The wife of the deceased employee made an application for being considered for the compassionate appointment but no order was passed in this regard as the corporation kept on seeking directions and guidelines for providing appointment on compassionate ground. In the meantime, the petitioner, who was married to a poor person, became a widow and during the lifetime of the deceased employee, she became dependent on him. The brother of the petitioner, who was in government service, was also not affording any help to the family of the deceased employee. Sometime later, her mother also passed away.

The petitioner was absolutely dependent on her father, and therefore sought compassionate appointment in place of her deceased father.

The Court was of the opinion that since there was no other claimant for being considered for appointment on compassionate ground, it directed the petitioner to make a representation before the Municipal Commissioner, for them to consider her for being appointed on compassionate ground on any Class-IV post, subject to the scheme of such compassionate appointment which may be prevalent in the corporation. The Court directed the Municipal Commissioner of Munger to look into the case of the petitioner in the right perspective and the law which has developed with regard to grant of compassionate appointment in order to provide succour to the family of the deceased employee.[Moti Devi v. State of Bihar, 2019 SCC OnLine Pat 1372, decided on 07-08-2019]

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Karnataka High Court: R. Devdas, J. allowed a writ petition under Articles 226 and 227 of Constitution of India, and quashed the order passed by Bengaluru Development Authority, denying compassionate appointment to the petitioner.

In the instant case, the petitioner filed an application before the Bengaluru Development Authority (respondent), seeking appointment on compassionate ground. It was rejected by the respondent on the ground that petitioner was born out of the second marriage of his father who was an employee of the respondent-Authority. Thereby, the petitioner filed a writ petition before the High Court to quash the said order.

The learned counsel of the petitioner, Sri Shanmukhappa, submitted that the impugned order was passed by the respondent keeping in mind the Circular dated 27-08-2015 wherein it was stated that the children born out of second marriage of a government servant or an employee could not seek appointment on compassionate ground, which was offensive to the constitutional guarantee against discrimination. For this he relied on the judgment of the Supreme Court in Union of India v. V.R. Tripathi, 2018 SCC OnLine SC 3097, where it was held that “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.”

In the view of the above, the Court allowed the petition and ordered to quash the impugned order dated 12-03-2018. It also directed the respondent to reconsider the application of the petitioner, and pass the order in accordance with law within a period of two months.[Lohit Gowda V. v. State of Karnataka, 2019 SCC OnLine Kar 562, decided on 25-04-2019]

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Patna High Court: The Three-Judge Bench of Ashwani Kumar Singh, Birendra Kumar and Anil Kumar Upadhyay, JJ. disposed of an appeal arising out of a reference made by the Division Bench of this Court, in view of conflicting judgments on the aspect of maintainability of a claim for compassionate appointment of a child born from the second marriage of deceased employee, while the first marriage is subsisting.

A circular issued in 2005 under by the Personnel and Administrative Reforms Department of Government of Bihar declared that if a government servant marries while earlier marriage is subsisting, without the permission of the government, then such spouse and the ward of such spouse would be disentitled for appointment on compassionate ground. In a petition filed before this Court, the learned Single Judge quashed the said circular and directed the petitioner authority to appoint minor-respondent herein (whose father died in harness and who was the son of deceased’s second wife) on compassionate grounds. 

The Court relied on Union of India v. V.R. Tripathi, 2018 SCC OnLine SC 3097 where the right to compassionate appointment to child of second marriage was acknowledged under Section 16(1) and 16(3) of the Hindu Marriage Act, 1955 (HMA); and where it was held that while designing a policy of compassionate appointment, State can prescribe the terms on which it can be granted. However, while making a scheme/ rule, State could not lay down conditions inconsistent with Article 14 of the Constitution of India.

It was opined that once Section 16 of HMA regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, the State could not exclude such a child from seeking the benefit of compassionate appointment. An employer, who is amenable to Part III of the Constitution, could not deny the benefit of compassionate appointment available to other legitimate children. Such a condition of exclusion would be arbitrary and ultra vires as it would bring out unconstitutional discrimination between legitimate children, who form one class.

If a government servant performs the second marriage, it would amount to misconduct committed in service. In such a case, if he is proceeded against for such misconduct while in service and misconduct is proved, the government may be free to take any action against such employee and the same may be a relevant consideration for denying the prayer for compassionate appointment of dependents of the deceased employee. However, if no disciplinary proceeding is initiated for any misconduct against an employee while in service; after his death, his dependents cannot be denied compassionate appointment on the ground that while in service, the employee had been guilty of misconduct.

It was observed that appointment on compassionate ground is not a source of recruitment but an exception to the general rule, the purpose of which is to prevent destitution and penury in the family of a deceased employee. Application for compassionate appointment must be decided on facts of each individual case. Therefore, the impugned order was modified and the subject circular was quashed to the extent it prevented children of the second wife from being considered for appointment on the compassionate ground; with a direction to the appellant to consider the claim of the respondent for appointment on compassionate ground on merit.[Bihar State Electricity Board v. Chadra Shekhar Paswan, 2019 SCC OnLine Pat 562, decided on 18-04-2019]

Case BriefsHigh Courts

Patna High Court: The Division Bench of Amreshwar Pratap Sahi and Anjana Mishra, JJ. rejected a petition assailing the order delivered by Central Administrative Tribunal, on the ground of inordinate delay in filing the petition.

In the instant case, an employee had died in harness in the year 1992. The matter for compassionate appointment in place of the deceased employee was taken up by the Central Administrative Tribunal where it was, ultimately, disposed of in 2008. The instant petition was filed challenging the order of the said Tribunal.

The Court noted that the present petition had been filed after an inordinate delay of almost ten years and the explanation sought to be given for the delay did not appear to be convincing. It was opined that the petition was heavily barred by laches, more so, as the subject matter related to that of compassionate appointment.

In view of the above, the Court declined to interfere on the ground of laches. [Ravi Shankar Kumar v. Union of India, 2019 SCC OnLine Pat 255, Order dated 27-02-2019]

Case BriefsHigh Courts

Meghalaya High Court: Yaqoob Mir, CJ dismissed a petition for compassionate appointment holding it to be without merits.

Petitioner’s father was in Meghalaya Police who died in harness in the year 1999 while debuted for operational duty at Shillong, West Khasi Hills District. In 2017, after a lapse of 18 years, petitioner applied for the compassionate appointment. His application was considered and rejected stating that in terms of the relevant Department Order, the application for appointment on compassionate grounds had to be filed within 1 year from the date of death of the Government servant or from the date of acquiring a necessary educational qualification. Therefore, petitioner’s claim was rejected as time-barred.

R. Sharon, Advocate for the petitioner admitted that he acquired the necessary qualification in 2011 but applied only in the year 2017.

The High Court found favour with submissions of Advocate General A. Kumar. It observed, “Compassionate appointment admittedly is a departure from normal rules of appointment but same has laudable object of saving the deceased’s family from crisis and financial complications. Here in the instant case, the family has survived for 18 years.” Petitioner failed to show any rule which would provide for considering his application and resultantly, the petition was dismissed. [Ravi Koch v. State of Meghalaya, 2019 SCC OnLine Megh 4, dated 04-02-2019]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Shivaji Pandey, J. dismissed a petition as the denial of compassionate appointment was justified on the part of the respondents.

The petitioners challenged an order wherein their services were terminated on the ground that their family members were already in service when they were appointed on compassionate ground. It was contended by their counsel Md. Shahnawaz Ali that one of the family members shall be given the benefit of compassionate appointment when the only bread earner of the family dies.

The Court placed reliance on the fact that when the family members of the petitioners were working in the Corporation, the question of their appointment on compassionate appointment does not arise and thus termination of the petitioners was not erred on the part of the respondents.

Accordingly, the petition was dismissed but if an advertisement was published in future, the respondents shall be at liberty to consider the case of the petitioners on sympathetic grounds. [Pradeep Kumar Ram v. State of Bihar, 2018 SCC OnLine Pat 2268, decided on 21-12-2018]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge bench comprising of Aparesh Kumar Singh, J. while dealing with a civil writ petition rejected the petitioner’s claim for compassionate appointment in place of his father’s legally married wife.

Facts of the case were that the petitioner’s father – Laldo Turi – had two wives, first one Baso Devi and the second being the petitioner’s biological mother Jagni Devi. Baso Devi died while working as Piece Rated Worker in one of the projects of the respondent. The petitioner claimed compassionate appointment in lieu of Baso Devi’s death which was rejected on the ground that he was not the natural son of deceased employee but her step son. Petitioner claimed that even as a son of the second wife, he was entitled to compassionate appointment since Baso Devi’s service excerpts mentioned him as her son, and also because a family certificate issued by the Circle Officer showed Jagni Devi as the co-wife of his father Laldeo Turi and him as their son.

The legal issue to be decided was as to whether the petitioner would be covered under the expression ‘son’ and/ or ‘legally adopted son’ under Clause 9.3.3 of Social Security chapter of National Coal Wage Agreement-VII (NCWA-VII), to seek compassionate appointment.

Clause 9.3.3 of NCWA- VII provides for employment to the dependent of a deceased employee dying in harness who fall in the category of wife/ husband/unmarried daughter/son/legally adopted son.

The Court noted that for the purposes of the said clause, a dependent would mean wife/ husband, unmarried daughter, son and legally adopted son. If no such direct dependent is available for employment, brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the deceased and almost wholly dependent on the earnings of the deceased, may be considered to be the dependent of the deceased. It was noted that the categories of dependents included in the clause are those who have a valid and legal relationship with the employee.

Having regard to the aforesaid noting, the High Court observed that the petitioner was not a legally adopted son of the deceased employee Baso Devi. Moreover, the fact that the deceased employee is not his biological mother was revealed by him much later. Holding that the petitioner did not fall under any of the categories stated above, the writ petition was dismissed. [Nageshwar Turi v Central Coalfields Limited,2018 SCC OnLine Jhar 1207, Order dated 19-09-2018]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., allowed a writ petition filed against the order of the respondent authorities, rejecting petitioner’s claim for compassionate appointment on the ground that compassionate appointment cannot be granted in cases of deemed death or civil death.

The main issue for consideration, in this case, was whether the respondent authorities were justified in rejecting petitioner’s claim on the ground that compassionate appointment cannot be granted in cases of deemed death.

The Court observed that there is no distinction between civil death or deemed death and natural death. The Court referred to its own decisions including Bijay Kumar Pradhan v. State of Jharkhand, 2013 SCC OnLine Jhar 1417 and Sunil Kumar v. State of Jharkhand, 2015 SCC OnLine Jhar 2308. In both these cases the Court had held that there is no difference between civil and natural death, hence compassionate appointment cannot be denied in cases of civil death.

The Court held that as per Section 108 of the Indian Evidence Act, 1872 “if a person has not been heard of for 7 years by those who could naturally have heard of him if he has been alive, then the burden of proof that he is alive is shifted on the person who affirms it.” In this case, the petitioner and her mother successfully proved that they have not heard of the petitioner’s father for more than last 7 years and the respondents have themselves admitted that petitioner’s father has met with civil death. On these grounds the Court allowed the petition and quashed the order of respondent authorities, directing them to consider petitioner for compassionate appointment.[Praveen Kumar Singh v. State of Jharkhand,2018 SCC OnLine Jhar 753, Order dated 25-07-2018]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., allowed a writ petition filed against the order of Respondent-authority whereby petitioner’s claim for compassionate appointment after the death of his mother was rejected.

The main issue, in this case, was whether the respondent authorities can come up with a new ground for rejection of petitioner’s application in subsequent proceedings.

The Court, in this case, observed that initially the claim of petitioner was rejected by the respondents on the ground that the petitioner ought to have applied for a compassionate appointment within six months from the death of his mother. The Court had then rejected the plea of the respondent and had directed them to reconsider the case of petitioner, however the same was again rejected on the ground that the petitioner was below fifteen years of age at the time of death of his mother and hence he could not have been kept on live-roaster for compassionate appointment.

This plea was not raised by the respondent authorities previously and the respondents had come up with this new contention only after the matter was once directed to be re-considered. Hence, the Court held that if this is allowed then it would lead to a never-ending series of litigation and the contention of the respondents was rejected. Accordingly, the petition was allowed and the order of the respondent authorities was quashed by the Court.[Budhu Oraon v. Central Coal Fields Limited,2018 SCC OnLine Jhar 640, dated 12-07-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench comprising of Ali Mohammad Magrey, J., dismissed a petition filed by the petitioner seeking the benefit of SRO 43 of 1994 [Jammu & Kashmir (Compassionate Appointment) Rules, 1994].

The petitioner was an adopted son whose father was killed in an encounter between Army and militants. The petitioner sought compassionate appointment against the death of his father.

The Court, in this case, referred to various Rules of SRO 43 of 1994 including Rule-2 wherein applicability of the said rules has been laid down which includes adopted sons and daughters as well within its ambit. The Court then referred to SRO 177 which amended certain rules of SRO 43 of 1994 and observed that as per the amendment to clause (d) of Rule 2, the benefit of SRO 43 of 1994 shall be given to the adopted sons or daughters only if the personal law of the community to which the beneficiary/adoptee belongs, allows the process of adoption.

The Court concluded by holding that the petitioner was not entitled to the benefit of SRO 43 of 1994 since his community does not permit the process of adoption and hence the petition was dismissed. [Mohammad Rafiq Wagay v. State of J&K,2018 SCC OnLine J&K 470, order dated 26-07-2018]