Durgesh Kumar vs State Of Jharkhand And Ors

The petitioner has approached this Court for the following reliefs:

i. For setting aside the order/decision dated 08.09.2016 (Annexure-10), passed by the Establishment Committee under the supervision of Deputy Commissioner, Chatra so far it relates to the petitioner regarding appointment of the petitioner on compassionate grounds for the reason of delayed application for compassionate appointment on account of death of the petitioner's father Mahendra Ram.

ii. To direct the concerned respondents to appoint the petitioner on compassionate ground as whatever delay in filing the application is made, the same has been done at the behest of the State authorities and not due to the inaction of the petitioner or his mother (wife of the deceased employee) namely Chinta Devi.

The factual exposition, as has been delineated in the writ petition, is that petitioner's father late Mahendra Ram was working as a Grade IV Employee (Khalasi) in the Drinking Water and Sanitation Sub Division, Chatra who joined his service in the year 1983 and died in harness on 13.11.1998 in Chatra. The petitioner's brother Gyan Prakash applied before the authorities concerned for compassionate appointment, which was however not heeded to and therefore, he was compelled to move before this Court by filing writ petition being C.W.J.C.No.3056 of 2000 (R), which was heard and disposed of with a direction to the respondents to decide the same within a period of three months. Thereafter, the petitioner's mother further filed a writ petition before this Hon'ble Court being W.P.(S) No.1078 of 2004 for payment of retiral dues, which was decided on 25.02.2004 with a direction to pay the admitted dues which was accordingly paid. Thereafter, the petitioner's mother and elder brother Gyan Prakash endeavoured and throughout represented before the respondents authorities for appointment but neither orders of this Court was considered nor any adverse order was passed. The petitioner came to know that due to the fact that petitioner's father was not confirmed employee, so the State of Bihar as well as the State of Jharkhand was reluctant in giving compassionate appointment to the petitioner or any other members of the family. Neither the matter of compassionate appointment as per order of the Hon'ble High Court was allowed or rejected till the year 2011. Due to tireless efforts made by Chinta Devi, the service of the deceased employee Mahendra Ram was confirmed by the Chief Engineer, Mechanical Department, Govt. of Jharkhand vide his letter no. 4437, dated 15.09.2011 but the service was confirmed with effect from 13.10.1988. Within 4-5 years of the disposal of the writ petition (Annexure-1), the petitioner's brother Gyan Prakash became seriously ill and consequently lost his eye sight to a large extent and therefore, he was not able to see properly. Therefore, on the instruction of his mother Chinta Devi and with the affidavit filed by all the relatives i.e. sister and mother, the petitioner filed his representation before the respondents concerned requesting to appoint him on compassionate grounds. The petitioner applied for compassionate ground before the Executive Engineer, Drinking Water and Sanitation, Mechanical Division, Hazaribagh vide his request letter dated 02.12.2011 along with all the testimonials. The said application along with the testimonials were sent to the Superintending Engineer along with the recommendation letter of the Executive Engineer on 03.07.2013. The Superintending Engineer vide his letter dated 29.08.2013 requested the Deputy Commissioner to consider appointment of the petitioner on the basis of the decision taken by the Chief Engineer regarding confirmation of the service of the petitioner's father.

Learned Counsel for the petitioner submits that the petitioner may be appointed on the instruction of deceased wife (petitioner's mother) for compassionate appointment on account of death of his father who died in harness as the petitioner's mother is facing serious financial crisis. Denial of compassionate appointment to the deceased family amounts to inequality and violation of Article 14,15, 16 and 21 of the Constitution of India. The petitioner's case is fit to be considered in the facts and circumstances of the case.

Per contra counter-affidavit has been filed.

Learned Counsel for the respondents vehemently opposes the contention of the learned Counsel for the petitioner and submits that the father of the petitioner Mahendra Ram was appointed to the post of pump Khalasi as a worked charged establishment on 12.10.1988 and continued in the service till his death i.e. 13.11.1998. After death of Mahendra Ram, wife of the deceased employee namely Most. Chinta Devi filed an affidavit dated 01.12.1998 for compassionate appointment of her elder son Gyan Prakash, which was forwarded to the Superintending Engineer, PHED, Ranchi vide letter No. 973 dated 14.10.1999. The eldest son of late Mahendra Ram did not get compassionate appointment on the ground that the dependent of employees of worked charged establishment were not entitled to get appointment on the compassionate ground after death of the employee. A guideline was issued by the Department of Public Health and Engineering, Govt. of Bihar issued under Memo No. 883 dated 21.07.1999 and Department of Personnel & Administrative Reforms, Govt. of Bihar vide No. 2822 dated 27.04.1995. The brother of the petitioner namely Gyan Prakash filed a writ petition before the Hon'ble Court as C.W.J.C.No.3056 of 2000 (R), which was disposed of by the Hon'ble Court vide order dated 13.09.2000 and matter was remitted back to Executive Engineer, P.H.E.D., Chatra for determining question relating to the appointment of Gyan Prakash on compassionate ground. In the meantime, the Chief Engineer, Drinking Water and Sanitation Department, Govt. of Jharkhand, regularized the service of the father of the petitioner w.e.f. 13.10.1988 and a communication was sent to this effect to the Superintending Engineer, Drinking Water and Sanitation Division, Hazaribagh vide Memo No. 4437 dated 15.09.2011. The brother of the petitioner Gyan Prakash did not come forward with any application for compassionate ground after issuance of order of regularization of service of his father. On 02.12.2011 the petitioner filed an application for his appointment on compassionate ground on account of death of his father on 13.11.1998, the application dated 02.12.2011 was neither in the proper format nor there was any mentioning as to why he has applied in place of his brother Gyan Prakash.

Be that as it may, having gone through the submissions of the parties, this Court is of the considered view that father of the petitioner Mahendra Ram was appointed to the post of pump Khalasi as a worked charged establishment on 12.10.1988. The dependent of employees of worked charged establishment were not entitled to get appointment on the compassionate ground after death of the employee. A guideline was issued by the Department of Public Health and Engineering, Govt. of Bihar issued under Memo No. 883 dated 21.07.1999 and Department of Personnel & Administrative Reforms, Govt. of Bihar vide No. 2822 dated 27.04.1995. The matter fell for consideration before the Full Bench judgment of this Hon'ble Court in case of "Ram Prasad Singh vrs. State of Jharkhand", reported in [2005] 3 JLJR 38/ [2005] 3 JCR 9.

"(i) The work-charged employees, who have completed more than five years of continuous service against one post in the work-charged establishment and otherwise eligible, have a right of consideration of their cases for taking over their services in the permanent (regular) establishment, irrespective of their dates of appointment.

But the work-charged employees, working on daily wages, not holding any post, are not so entitled.

(ii) The dependants of work-charged employees are not entitled to claim appointment on compassionate ground and entitled to claim appointment on compassionate ground; and

(iii) The work-charged employees working against a post, in regular scale of pay, on their retirement and after their death, their heirs/dependants are entitled to claim death cum retiral benefits, such as, pension/family pension, gratuity, leave encashment etc. apart from G.P.F. and Group Insurance amount, if otherwise fulfils the requisite qualifying period to earn pension, gratuity and leave encashment."

In view of the aforesaid Rules, guidelines and judicial proposition, no case is made out for interference.

Hence the writ petition is dismissed.