Kumari Asha Chauhan vs Central Coalfields Limited

D.N. Patel A.C.J.

I.A. No. 4361 of 2018

This interlocutory application has been preferred under Section 5 of the Limitation Act for condonation of delay of 58 days in preferring this Letters

Patent Appeal.

Having heard learned counsels for both the sides and looking to the reasons stated in this interlocutory application, especially in paragraph nos. 4

and 5, there are reasonable reasons for condonation of delay. We, therefore, condone the delay of 58 days in preferring this Letters Patent Appeal.

This interlocutory application is, therefore, allowed and disposed of.

L.P.A. No. 423 of 2017

This appellant is an original petitioner whose W.P. (S) No. 5022 of 2012 was dismissed by the learned Single Judge vide judgment and order

dated 21st April, 2017, whereby, the prayer for getting compassionate appointment because of, death of her mother-in-law,

which has taken place on  12 th June, 2001 , was not accepted by the learned Single Judge and, hence, the original petitioner has preferred the

present Letters Patent Appeal.

Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that mother-in-law of thisÂ

appellant, who was serving with respondent no.1, expired on  12 th June, 2001.

Thereafter, son of the deceased employee preferred an application, which was rejected by respondent no.1 vide order dated 16  th June,

2002 on the ground that husband of the deceased employee was working with respondent no. 1. Thus, the son could not get the employment because

his father was serving with respondent no.1.

It further appears from the facts of the case that son of the deceased employee expired on  25 th April, 2003.

The husband of the deceased employee retired on  31 st May, 2008, who is father-in-law of the present appellant.

After the retirement of father-in-law of the present appellant (or after the death of deceased employee), an application was preferred by the

present appellant on 4th February, 2008 and thereafter another application was preferred on 30th August, 2011 for getting compassionate appointment.

The applications for getting compassionate appointment of this appellant were rejected vide order dated 3rd July, 2012 and 19th July, 2012, which is at

Annexure-6 to the memo of this Letters Patent Appeal, which was under challenge in the writ petition and as the writ petition preferred by this

appellant was dismissed by the learned Single Judge, she has preferred the present Letters Patent Appeal.

Reasons:

Looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts and

reasons:

(a) The mother-in-law of this appellant expired on 12  th June, 2001. She was working with respondent no.1. Applications for getting

compassionate appointment were preferred by this appellant- first application was preferred on  4 th February, 2008 and thereafter another

application was preferred on  30 th August, 2011.

(b) It ought to be kept in mind that public employment cannot be given without public advertisement. Public employment cannot be

given without giving opportunity to the public at large, to compete with each other. Public employment cannot be given to any one or every one without

following selection procedure.

(c) The only exception, to the aforesaid rule is compassionate appointment. Compassionate appointment cannot be claimed as a matter of right. After

long lapse of time from the date of death of the employee, the very purpose of compassionate appointment is frustrated. (d) There is no legal

obligation on the part of the employer to give public employment, at any point of time, after the death of employee of public sector. Compassionate

appointment is not an alternative method of employment. It is given just to support the family member of the deceased employee. Immediate support is

required and, therefore, this exception has been carved out.

(e) The mother-in-law of the present appellant expired on  12 th June, 2001. After a period of more than one and half decade, no such public

employment can be given to this appellant by way of compassionate appointment. If this appellant could manage her affairs for one and half decade

after the death of her mother-in-law, she is not entitled to get the compassionate appointment.

(f) Even if the public advertisement was given by respondent no.1 or if this appellant was invited by respondent no. 1 for her consideration, as there is

no legal obligation on the part of respondent no.1 or as there is no right vested in this appellant, no error has been committed by respondent no. 1 in

rejecting the applications of this appellant for compassionate appointment. There is no arbitrariness in the decision given by respondent no.1 while

rejecting the applications for compassionate appointment. The officer of respondent no.1 might have invited this appellant, but, that does not mean that

respondent no.1 can do more charity than the law. Personal charity is one thing and charity by law is another thing. If the law prohibits such type of

compassionate appointment, even if the public employment is given or even if this appellant was invited, no such public employment can be offered by

respondent no.1, much less, by the officer of respondent no.1.

(g) It has been held by the Hon'ble Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana and others, reported in

(1994) 4 SCC 138 in paragraphs 2, 3, 4, 5 and 6, which read as under:

“2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears

that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open

invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public

authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule

which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One

such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of

livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the

family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the

deceased who may be eligible for such employment. 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. The provision of employment in such lowest posts by making an exception to

the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts

has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the

public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions

of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in

consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the

erstwhile employment which are suddenly upturned.

Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of

course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is

legally impermissible.

It is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even

directed compassionate employment either as a matter of course or in posts above Classes III and IV. We are also dismayed to find

that the decision of this Court in Sushma Gosain v. Union of India has been misinterpreted to the point of distortion. The decision does not justify

compassionate employment either as a matter of course or in employment in posts above Classes III and IV. In the present case, the High Court has

rightly pointed out that the State Government's instructions in question did not justify compassionate employment in Class II posts. However, it appears

from the judgment that the State Government had made at least one exception and provided compassionate employment in Class II post on the

specious ground that the person concerned had technical qualifications such as M.B.B.S., B.E., B.Tech. etc. Such exception, as pointed out above, is

illegal, since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the

penurious condition of the deceased's family. Neither the qualifications of his dependant nor the post which he held is relevant. It is for this reason that

we are unable to understand the following observations of the High Court in the impugned judgment:

 “We are of the view that the extraordinary situations require extraordinary remedies and it is open to the Government in real hard cases to

deviate from the letter and spirit of the instructions and to provide relief in cases where it is so warranted. To hold as a matter of law that the

Government cannot deviate even minutely from the policy of providing appointment only against Class III and Class IV posts, would be to ignore the

reality of life these days. It would be ridiculous to expect that a dependant of a deceased Class I Officer, should be offered appointment against a

Class III or IV post. While we leave it to the Government to exercise its discretion judiciously in making appointments to Class

I or II posts on compassionate grounds, yet a word of caution needs to be struck. It is to be noted that such appointments should be ordered in the

rarest of rare cases, and in very exceptional circumstances. As a matter of fact, we would recommend that the Government should frame a policy

even for such appointments.â€​

It is obvious from the above observations that the High Courtendorses the policy of the State Government to make compassionate appointment in

posts equivalent to the posts held by the deceased employees and above Classes III and IV. It is unnecessary to reiterate that these observations are

contrary to law. If the dependant of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not

offered to cater to his status but to see the family through the economic calamity.

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, theÂ

compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.â€​

        (emphasis supplied)

(h) It has been held by the Hon'ble Supreme Court in the case of Sanjay Kumar v. State of Bihar and others, reported in (2000) 7 SCC 192 in

paragraph 3, which reads as under:

“3. We are unable to agree with the submissions of the learned Senior Counsel for the petitioner. This Court has held in a number of cases that

compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to

death of the breadearner who had left the family in penury and without any means of livelihood. In fact such a view has been expressed in the very

decision cited by the petitioner in Director of Education v. Pushpendra Kumar. It is also significant to notice that on the date when the first application

was made by the petitioner on 2-6-1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There

cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions.

The very basis of compassionate appointment is to see that the family gets immediate relief.â€​

                   (emphasis supplied)

(i) It has been held by the Hon'ble Supreme Court in the case of Santosh Kumar Dubey v. State of Uttar Pradesh and others, reported in (2009) 6

SCC 481 in paragraphs 10, 11, 12 and 13, which read as under:

“10. Admittedly, the father of the appellant was untraceable from 1981. Without entering into and deciding the issue as to whether employment

on compassionate grounds could be asked for in a case of deemed death under Section 108 of the Evidence Act, even if we assume for the sake of

argument that it can be so demanded and asked for, such a right should and could have been exercised in the year 1988 and computing

the period of five years therefrom the period of limitation for making an application for employment in the case of the appellant expired in the year

1993.

The very concept of giving a compassionate appointment isto tide over the financial difficulties that are faced by the family of the deceased due to

the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given

so that the family can tide over such financial constraints.

The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the

family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economicÂ

crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also

cannot be treated as a bonanza and also as a right to get an appointment in government service.

In the present case, the father of the appellant became untraceable in the year 1981 and for about 18 years, the family could survive and

successfully faced and overcame the financial difficulties that they faced on missing of the earning member. That being the position, in our considered

opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction  could be issued forÂ

giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions.

The appeal, therefore, has no merit and is dismissed.â€​                           (emphasis supplied)

In view of the aforesaid facts, reasons and judicial pronouncements, no error has been committed by the learned Single Judge while dismissing the

writ petition being W.P. (S) No. 5022 of 2012 vide judgment and order dated 21st April, 2017. We are in full agreement with the reasons given by the

learned Single Judge. There is no substance in this Letters Patent Appeal, the same is, therefore, dismissed.