Omendra Shah Kunjam vs State of Chhattisgarh and Others

The instant intra-court appeal arises from the order dated 28.11.2011 passed by the learned Single Bench in W.P.(S) No. 7042/2011 (Annexure A-1), whereby, the writ petition was dismissed.

The facts, in brief, as projected by the appellant before the Single Judge was that the father of the petitioner namely Shri Vikram Shah Kunjam, working as Village Assistant (Gram Sahayak) died on 05.08.1992 in harness. Thereafter, the petitioner made an application on 21.08.2009 for grant of compassionate appointment. The respondent No. 2, by the impugned order dated 06.02.2010 (Annexure P-1) rejected the application on the ground that under memo No. F/7-4/2002/1-3, Raipur, dated 10.06.2003, issued by the General Administration Department, Government of Chhattisgarh, the application for compassionate appointment may be made within three or six months from the date of death of the employee. Accordingly, the application was rejected. Thereafter, some representations were made, which were of no relevance in the petition.

The main ground of challenge was that the petitioner was minor at the time of death of his father on 05.08.1992, after attaining the age of majority and after having obtained Higher Secondary School Certificate in the year 2009, the petitioner had made an application for compassionate appointment.

Learned counsel for the appellant reiterated the same submission before this Court also. Learned Single Bench having considered all the aspects of the matter dismissed the writ petition by the impugned order dated 28.11.2011 (Annexure A-1) on the ground that the family survived for a period of 17 yeaRs. Thus, there was no necessity of granting appointment to the appellant on compassionate basis.

It is well settled principle of law that no appointment on compassionate basis be made de hors the policy of the State Government for compassionate appointment. The petitioner has not produced any policy, wherein, it is provided that the application for compassionate appointment can be made at any point of time after death of the employee, by the dependant family members of the deceased employee. The ground of the petitioner that he was minor at that point of time in the year 1992, the petitioner has not expressed anywhere as what was his age at the time of death of his father and whether there was any policy to consider application of a dependant family member after he attains the majority. Thus, the contention of learned counsel as aforestated has rightly been rejected.

It is a trite law that appointment on compassionate basis to the dependant of the deceased employee can be granted only in accordance with the policy of the Government. If there is no policy to grant compassionate appointment to the dependant of the deceased employee, no writ can be issued against the Government to grant any appointment, including the compassionate appointment. (See : Life Insurance Corporation of India v. Asha Ramchandra Ambedkar (MRs. ) & another and Commissioner of Public Instructions & Others v. K.R.Vishwanath).

Mere death of an employee does not entitle the dependants to claim compassionate appointment if the family members could sustain themselves financially from other sources. The petitioner has been able to sustain himself for about 17 years after the death of his father.

The principle of law on the compassionate appointment is well settled. The compassionate appointment is granted only in the event, if an employee dies in harness and on account of sudden death, the dependent family has become penurious on sudden demise of the bread earner of the family. The compassionate appointment itself is a backdoor entry. It is a departure from the general rule of employment, as provided under the provisions of Article 14 & 16 of the Constitution of India. The appointment on compassionate basis is not in accordance with the constitutional scheme of employment but in order to subserve the above stated purpose, this provision has been made under the Rules framed by the State Government (See: State of J&K Others v. Sajad Ahmed Mir, National Institute of Technology & Others v. Niraj Kumar Singh, Haryana State Electricity Board and another v. Hakim Singh).

In State of Manipur v. Md. Rajaodin, the Supreme Court has held that :

In Sushma Gosain v. Union of India, it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the breadwinner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the Scheme itself envisages specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati v. Union of India and Union of India v. Bhagwan Singh. In Director of Education (Secondary) v. Pushpendra Kumar, it was observed that in the matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provisions for grant of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision.

Recently, the Supreme Court in Bhawani Prasad Sonkar v. Union of India & Others, has laid down the guidelines while considering a claim for employment on compassionate basis, as under:

Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind :

(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.

(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.

(iii) An appointment on compassionate ground is to meet the sudden crises occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee''s family at the time of his death or incapacity, as the case may be.

(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.

Applying the well settled principles of law on compassionate appointment, as aforestated, to the facts of the present case, it is evident that the petitioner is claiming compassionate appointment in absence of rules, regulations and instructions issued by the State Government, which provides for grant of compassionate appointment, after a period of 17 yeaRs. Secondly, the petitioner had not explained sufficient reasons asto how his family could survive for such a long period of 17 years after death of the deceased employee.

For the reasons mentioned hereinabove, we do not find any infirmity or irregularity in the impugned order passed by the learned single Bench warranting interference. Thus, the appeal is dismissed.