Monti Bawrin vs M/s Bharat Coking Coal Limited

D.N. Patel A.C.J.

I.A. No. 4293 of 2018

This interlocutory application has been preferred under Section 5 of the Limitation Act for condonation of delay of 183 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. 24,

25, 26 and 27, it appears that there are reasonable reasons for condonation of delay. We, therefore, condone the delay of 183 days in preferring this

Letters Patent Appeal.

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

L.P.A. No. 426 of 2017

This Letters Patent Appeal has been preferred by the original petitioner whose W.P. (S) No. 4650 of 2016 was dismissed by the

learned Single Judge vide judgment and order dated 4th January, 2017, whereby, the prayer for getting compassionate appointment because of death

of her mother, which has taken place on  27 th August, 1998 , was not accepted by the learned Single Judge and, hence, the original

petitioner has preferred the present Letters Patent Appeal.

Reasons:

Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that this appellant is an original

petitioner.

This appellant had preferred a writ petition being W.P.(S) No. 4650 of 2016 for getting compassionate appointment because her mother was

serving with the respondents and she expired during the course of her employment on  27 th August, 1998.

It is alleged by this appellant that application for compassionate appointment was preferred on 24th January, 1999, whereas, it is contended by the

learned counsel for the respondents that application was received on 6th December. 2005.

This application was rejected on 3rd May, 2013 and the writ petition was preferred in the year 2016.

Thus, it appears that there is gross delay of 18 years in preferring the writ petition after the death of mother of this appellant, who expired on Â

27th August, 1998.

The purpose of compassionate appointment has been frustrated by now. Compassionate appointment is not an alternative mode of appointment. It

is given only with a view to give immediate support to family members of the  deceased employee.

If the daughter of the deceased employee is waiting for years together for coming to the Court, no compassionate appointment can be given to

her.

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 publicauthorities 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 IIIÂ orÂ

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 Court endorsesthe 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 theÂ

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.â€​                  (emphasis supplied)

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)

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 is to tideover 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 economic crisis

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

treated as a bonanza and also as a right to get an appointment in government service.

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 for

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 decisions and also looking to the fact that there is gross delay of 18 years in preferring the writ petition because the

mother of this appellant expired on 27  th August, 1998 and the writ petition was preferred in the year 2016 and also looking to the fact that

there is no averment in the writ petition that this appellant is still dependent upon the income of her deceased mother, no error has been committed by

the learned Single Judge while dismissing W.P. (S) No. 4650 of 2016 vide judgment and order dated  4 th January, 2017. We are in full

agreement with the reasons given by the learned Single Judge and we see no reason to take any other view than what is taken by the learned Single

Judge. Hence, there is no substance in this Letters Patent Appeal, the same is, therefore, dismissed.