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Judgment
Arun Kumar Goel, J.—Petitioner has filed this writ petition seeking a direction to respondent to offer employment to him on compassionate
grounds by quashing Order No. DSEJ/Writ/86468 dated 4.8.1998 issued by respondent No. 2, whereby his claim for compassionate
appointment stands rejected in the first instance, and also for quashing Order No. DSEJ/W/565/326367 dated 9.10.1999 having been passed
again; with a further prayer to direct the respondents to appoint him against the available vacant post in the Education Department on
compassionate grounds in terms of SRO 43 of 1994.
With a view to properly appreciate the respective submissions urged at the time of hearing facts regarding which parties were not at variance
need to be noted briefly.
Chanchala Devi was working as a Peon in the Education Department, she died in harness on 23.7.1990. She was posted in Government Girls
Middle School Jakheni, Zone Job, District Udhampur.
Petitioner is her son. His date of birth is 10.5.73. He became major on 9.5.1991. He approached the authorities for appointment on
compassionate grounds which was declined on 19.2.1996. He preferred SWP No : 1386/97 which was finally disposed of on 29.5.1998 with a
direction to respondents to finally decide the case within a period of three months because appointment on Class IV post under compassionate
rules is to be made by the Department and is not going to take much time.
It appears that after consideration of the case of petitioner it was rejected on 4.8.1998. He again preferred SWP No. 1471/98. It was disposed
of in the following terms on 15.2.1999 :
Respondents are accordingly directed to take notice of the above position and process the case of the petitioner for compassionate appointment.
Let a decision be taken and communicated to the petitioner within a period of three months. The period of three months would begin from the date
a copy of order passed by this court and also copy of order passed in SWP No. 488/98 is made available by the petitioner to the respondents.
Petition admitted, and disposed of accordingly.
Again after consideration of the case of petitioner it stands rejected. A perusal of the impugned order shows that he applied for the first time in
the year 199495, i.e. after about 4/5 years of the death of his mother.
It is in the aforesaid background that a prayer is made for quashing both the orders. Both these orders are illegal and arbitrary, besides being
vindictive in nature. While passing the impugned order respondent No. 2 has not kept in view the purpose of enacting SRO 43 and thus has fallen
into error. The impugned order is further claimed to be suffering from the vice of nonapplication of mind as no justifiable/cogent reasons have been
given while rejecting the same. Case of the petitioner was not time barred and thus he was entitled to the relief of compassionate appointment.
Discrimination is pleaded as another ground to allow the writ petition because in identical cases respondents have appointed other similarly situate
persons.
Respondents when put to notice have disputed the claim of petitioner and at the same time have pointed out that the impugned order is
according to law and has been passed on the basis of SRO 43 keeping in view its purpose and intendment as well as objective sought to be
achieved. According to them it may not be proper, much less as per provisions of SRO 43 to offer employment to the petitioner, otherwise it
would be against the purpose of SRO 43 and the law governing the same.
Learned counsel for the petitioner has placed reliance on SRO 194/89 as well, as submitted in his brief submission that petitioner is entitled to
the relief prayed for and delay by itself cannot be pressed into service to deny the same. Reliance has been placed on a decision of this court as
well as of Punjab & Haryana High Court.
Before dealing with the case law on the subject it may be appropriate to examine the purpose of providing appointment on compassionate
grounds. State with a view to mitigate the hardship in which a family is placed after the death of its sole bread winner has enacted provisions like
SRO 43 of 1994. It is in fact an endeavour to take out the family out of exceptional circumstances in which it is placed after the death of its bread
winner. This is aimed at providing immediate financial assistance to the family of a government servant who dies in harness. This is a beneficial
provision enacted to alleviate the distress and strait in which the family is placed because of unexpected death of a person while he was still in
service. This is the basic purpose of providing appointment on compassionate grounds as per rules whether framed in the State of J&K or in rest
of the country. Otherwise recruitment to a post is governed by the concerned Recruitment & Promotion Rules. This is as per provisions of the laws
enacted by the Legislature as well as by the State Government in exercise of powers vested in it under Section 124 of the Constitution of State.
Compassionate appointment is an exception to the general rule to overcome what is warranted in the hour of urgency due to untimely and
unexpected death of a person while he was in government service. Thus it cannot be claimed as a matter of right and at the same time it is also not
an alternate source of recruitment. Similarly an applicant cannot insist that he must be appointed against a particular job or that the appointment
offered is not to his liking. In such a situation he is free to say no to the offer of the government and take his chance by competing in the open
market.
In State of U.P. v. Paras Nath, 1999(4) SCT 292 , while considering Rule 4 of Utter Pradesh Recruitment of Dependents of Government
Servants Dying in Harness Rules, 1974, it was held as under :
The purpose of providing employment to a dependent of a Government servant dying in harness in preference to anybody else, is to mitigate the
hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family such
appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide
immediate financial assistance to the family of a deceased Government servant. None of these considerations can operate when the application is
made after a long period of time such as seventeen years in the present case.
In State of Haryana v. Rani Devi & another, 1996(4) SCT 63 (SC) it was held that appointments on compassionate grounds cannot be made
after the lapse of reasonable time and there is no such vested right which can be exercised at any time in future.
To similar effect is the decision of Supreme Court of India in Jagdish Prasad v. State of Bihar & another, 1996(2) SCT 207 (SC). What is
relevant for the present case is extracted hereinbelow :
It is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to
subsist even till date and that, therefore, the court is required to examine whether the appointment should be made on compassionate grounds. We
are afraid, we cannot accede to the contention. The very object of appointment of a dependent of the deceased employees who die in harness is to
relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death
occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained
majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased
Government servant which cannot be encouraged, do hors the recruitment rules.
In Haryana State Electricity Board v. Naresh Tanwar & another, 1996(2) SCT 778 (SC) , what is relevant is as under :
It appears to us that the principle of compassionate appointment as indicated in the aforesaid decisions of this Court, is not only reasonable
but consistent with the principle of employment in government and public sector. The impugned decisions of the High Court therefore cannot be
sustained.
In that view of the matter, we set aside the impugned judgments by allowing both the appeals. This order, however, will not preclude the
concerned applicants to make representations to the State Electricity Board for consideration of the case of their appointment either as a
temporary or permanent employee by giving full details of the family circumstances and the economic conditions. It is reasonably accepted that if
such representation is made, the concerned authority, namely the Haryana State Electricity Board will consider the same with such sympathy as the
applicant may deserve in the facts of the case.
In Dhalla Ram v. Union of India, 1999(2) SCT 301 (SC) it was held as under :
This Special Leave Petition arises from the order of the Central Administrative Tribunal, made on 12.7.1998 dismissing petitioner's application for
appointment on compassionate grounds. The father of the petitioner died on December 13, 1965 on which date the petitioner was below 6 years.
He attained majority, on his own statement, on July 12, 1997, when he completed 18 years of age. He made an application on July 15, 1987 for
his employment on compassionate grounds. The very object of making appointment on compassionate grounds is to rehabilitate the family in
distress of the deceased employee who dies in harness. There should be no difficulty to consider an eligible candidate for providing immediate
sustenance to the members of the deceased employee. He had applied on July 15, 1987 and the application was rejected on July 14, 1988. He
filed the OA on July 12, 1993. In view of the long delay, after the refusal by the Government, in filing the application, the same cannot be
entertained. The appointment on compassionate grounds is not a method of recruitment but is a facility to provide for immediate rehabilitation of
the family in distress for relieving the dependent family members of the deceased employee from destitution.
To similar affect is the decision of this court in LPA(SW) No. 127/98 dated 30.8.2000, State of J&K & another v. Mohinder Singh : 2001(4)
SCT 53 (J&K) (DB). After considering different decisions of Supreme Court of India while allowing the appeal it was held as under :
When the present case is examined in the light of facts referred to hereinabove as well as on the basis of the law declared by the Supreme Court
of India as referred to in the preceding paras, it is clear that respondent Mohinder Singh is not entitled to any relief whatsoever both under SRO
194 of 1989 as well as under SRO 43 of 1994. That being so in our considered opinion the impugned judgment is liable to be set aside it is
ordered accordingly. As a consequence of the same this appeal is allowed and SWP No. 172/97 is hereby dismissed with no orders as to costs.
To similar effect is the decision in Vipan Bangroo v. State of J&K & others, SWP No. 677/98, decided on 8.5.2000.
In the face of aforesaid decisions of the Supreme Court of India and of this court including one Division Bench judgment, cases referred to in the
written submission of Shri Sethi are not being taken note of.
In the context of SRO 149, petitioner was required to place on record that his monthly income does not exceed Rs. 2000/ per month. In the
absence of such proof, no benefit can be claimed by him. This is as per Rule 8 thereof. Thus it was for the petitioner to have brought enough
material on record with a view to enable the respondents to examine his case after having been put to notice as also enabling them to verify the
factual position. Reliance on the observations of the decision of the court in SWP No : 1386/97 that SRO 43/94 is not retrospective in its
applicability, suffice it to say that his case is not covered by Rule 8 of SRO 194 of 1989, was to be prima facie demonstrated by the petitioner.
Not a word has been said in that behalf by the petitioner in the writ. To the contrary petitioner himself wants his claim on compassionate grounds to
be allowed in terms of SRO 43. This is what is claimed in prayer class of the writ petition. It may be stated at the risk of repetition that from 1990
till 199495 petitioner sustained himself. From this it can be safely inferred that his need was not urgent, compelling as well as imperative. As such
as well as in the light of decisions referred to hereinabove of the Supreme Court and of this court, petitioner is not entitled to any relief whatsoever
in this writ petition and thus it is liable to be rejected.
No other point is urged.
In view of the aforesaid discussion there is no merit in this writ petition which is dismissed after it was formally admitted and taken up for final
hearing with the consent of learned counsel for the parties, who stated that the pleadings in the writ petition are complete.
CMP Nos : 2303/2K & 266/2K
No orders in view of the orders passed in the main matter, stand finally disposed of.