Jharkhand High Court
Chinta Devi vs The State Of Jharkhand Through Its ... on 8 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1985 of 2010
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Chinta Devi ..... Petitioner
Versus
1. The State of Jharkhand through its Secretary, Human
Resources Development Department, Government of
Jharkhand
2. Joint Commissioner, Commercial Taxes Department,
Government of Jharkhand
3. Director, Adult Education, Human Resources
Development Department, Government of Jharkhand
4. District Public Education Officer-cum-Sub Divisional
Education Officer, District Gumla
..... Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Mr. Rajiv Sharma, Advocate
For the Respondents : Mr. Manoj Kumar, G.A.III
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06/08.07.2021 Heard learned counsel for the parties
through V.C.
2. The instant writ application has been
preferred by the petitioner praying therein for
quashing and setting aside the letter No. 1007 dated
09.4.2009 issued by Respondent No.2; whereby the
representation of the petitioner for compassionate
appointment has been rejected.
The petitioner has further prayed for a
direction upon the concerned respondents to make
payment of all retiral benefits of late Kamlesh Prasad
including family pension and arrear of salary for the
period 16.05.2001 to 30.01.2008 to this petitioner
who is widow of the deceased employee.
3. Mr. Rajiv Sharma, learned counsel for the
petitioner draws attention of this court towards
Annexure 6 which is the rejection order and submits
that the only reason which has been assigned by the
concerned respondent is that the husband of the
petitioner has died prior to his regularization.
Learned counsel further submits that in
view of the letter as contained in Memo No. 1896
dated 22.11.2007; this petitioner has been absorbed,
as such the ground taken by the concerned
respondent that the husband of the petitioner has
died on 30.01.2008 prior to absorption is non est in
the eye of law.
He further submits that the petitioner has
not committed any delay in applying for
compassionate appointment and as such the action of
the respondents in rejecting the claim of this
petitioner is mala-fide, inasmuch as, during the period
of crisis the respondents were duty bound to adhere
to the principles of compassionate appointment and
when her representation for compassionate
appointment was rejected, the petitioner knocked the
door of this court.
His next limb of argument is that apart
from compassionate appointment, this petitioner is
also entitled for arrear of salary plus pension
including family pension as the husband of the
petitioner was absorbed prior to 18.02.2008, i.e. vide
letter dated 22.11.2007, wherein it has been clearly
stated that the petitioner has been absorbed. As such
her claim for retiral benefits is also sustainable in the
eye of law. However, for the reasons best known to the
respondent authorities the same has been denied.
4. Mr. Manoj Kumar, learned counsel for the
respondent State opposed the prayer of the petitioner
and submits that the husband of the petitioner was
appointed as Stenographer in the office of District
Public Education in the year 1980 and till 1988 he
worked continuously in the office of District Adult &
Non-Formal Education Officer, Katihaar under a
scheme of the Central Government.
Thereafter, in the year 1988, vide order
dated 27.6.1988 issued by the Director, Adult and
Non-Formal Education, the petitioner's husband was
transferred to the office of District Public Education
Officer, Saharsa and again in the year 1995 his
services were transferred to the office of the District
Public Education officer, Gumla. However, the said
scheme of the Government was closed with effect from
16.5.2001.
Thereafter, to sort out the aforesaid crisis
faced by several employees, a Cabinet meeting was
called and a decision was taken that all the surplus
employees of Non- Formal Education Project be
absorbed against vacant sanctioned posts in the
Commercial Taxes Department, Government of
Jharkhand and accordingly, a list was prepared
wherein the name of Late Kamlesh Prasad (petitioner's
husband) appeared at Serial No.2 and the list was
sent to the Commercial Taxes Department for
absorption. However, before formal letter of absorption
could be issued; the petitioner's husband died.
Learned counsel further submits that there
was no delay on the part of the State and even
otherwise, now the issue of compassionate
appointment, after more than 10 years of the death of
the employee, cannot be sustained in the eye of law.
5. Mr. Sudarshan Srivastav, learned counsel
for the Accountant General, Jharkhand draws
attention of this court towards Annexure B to the
counter affidavit filed by the State and submits that
even admitting that the petitioner's husband was
absorbed prior to his death though a formal letter of
absorption was not issued by the department; then
also this petitioner would not be entitled for any
pensionary benefit, inasmuch as, in the notification
issued by the Government of Jharkhand, at Clause-11
it has been specifically stated that the persons who
have been absorbed will not be entitled for any service
benefit of previous period and the absorption shall be
treated as new appointment.
This notification was challenged by several
similarly situated persons before this court and the
Full Bench of this Court in W.P.(S) No. 4110 of 2013,
vide its order dated 16.6.2017 resolved the issue and
held that the absorbed employee will be considered as
newly appointed employee and they will not get any
benefit of prior service. He further submits that the
said Full Bench order was challenged before the
Hon'ble Apex Court and the Hon'ble Apex Court has
dismissed the claim of such employee in the case of
PARMESHWAR NANDA AND OTHERS Vrs. STATE OF
JHARKHAND THROUGH CHIEF SECRETARY AND
OTHERS reported in (2020) 12 SCC 131.
He lastly submits that in view of the
aforesaid facts, so far as the claim of the petitioner
with respect to retiral benefit etc. is concerned; the
same has no legs to stand in the eye of law.
6. In reply to the aforesaid contention of the
respondents, Mr. Sharma, learned senior counsel
contended that even if this petitioner is not entitled
for the other service benefits which have accrued
pursuant to the death of the deceased employee but
certainly the petitioner shall be entitled for
compassionate appointment as there was no delay on
the part of the petitioner and the moment the
husband of this petitioner died she applied for
compassionate appointment and the delay, if any, has
been caused on the part of the respondents, as such
this petitioner cannot be held responsible for that. In
this view of the matter, looking to the object of
compassionate appointment, which is to enable the
family to tide over the sudden crisis which arose due
to the death of the sole breadwinner, the action of the
respondent State in rejecting the application for
compassionate appointment is non-est in the eye of
law.
He lastly submits that at least this
petitioner should get compassionate appointment as
there were no latches on the part of this petitioner.
7. Having heard learned counsel for the
parties and after going through the relevant
documents and the averments made in the respective
affidavits it appears that the petitioner was engaged
as Stenographer under Non formal Education Scheme
and continued to work from 1980 till 2001. However,
in the year May, 2001; the programme, which has
been organized and managed by the Central
government in the State of Jharkhand, was closed on
16.5.2001.
Subsequently, in the year 2007, the
Human Resources Development Department,
Government of Jharkhand took a decision to absorb
such persons who were working under the Non formal
Education Scheme and stood out of service on
16.5.2001 due to closure of the scheme on the
identified vacant posts of different department vide its
resolution No. 824 dated 30.5.2007. However, in this
resolution it was categorically stipulated at Clause-11
that this absorption will be treated as new
appointment and the person absorbed would neither
get the protection of pay nor the benefit of seniority
and pursuant thereto; vide letter dated 22.11.2007,
the name of all such employees including the
petitioner's husband was sent to the department of
Commercial Taxes, Government of Jharkhand for
issuing formal letters of absorption.
At this stage, it is pertinent to mention
here that just after the said letter was issued, the
petitioner's husband died in the month of January,
2008 and the formal order of absorption with respect
to all such employees were issued on 18.2.2008 for
posting. It is true that the decision of the Government
was taken way back in the month of May'2007 and
thereafter, in the month of November, 2007 the
recommendation was made to the department for
issuing formal letter of absorption but the fact
remains that the petitioner's husband died prior to
the letter of absorption was issued by the department.
Even accepting the contention of the
petitioner to consider the date of absorption to be
22.11.2007; the notification of the government dated
30.5.2007 cannot be ignored, inasmuch as, it was
categorically indicated at Clause-11 of the notification
that all these absorptions would be treated as new
appointments and the said issue has been decided by
the Full Bench of this Court in W.P.(S) No. 4110 of
2013 in favour of the State which was also upheld till
Hon'ble Supreme Court.
In view of the aforesaid facts, the claim of
the petitioner for post retiral benefits and/or family
pension etc. does not arise.
8. Now, coming to the question of
compassionate appointment; it is true that the object
of grant of compassionate appointment is to enable
the family to tide over sudden crisis which arose due
to the death of the petitioner's husband and certainly
immediately after the death of the petitioner's
husband, this petitioner approached the respondent
authorities by filing a representation which was
rejected on the ground that petitioner's husband died
prior to the absorption and thereafter the petitioner
knocked the door of this Court in the month of April,
2010.
It is also correct that there might be some
acute crisis after the death of the petitioner's
husband, but after a gap of long 11 years it cannot be
said that the sudden crisis is continuing and
compassionate appointment cannot be claimed or
offered after a significant lapse of time and after the
crisis is over as held by the Hon'ble Supreme Court in
the case of Central Coalfields Limited through its
Chairman and Managing Director and Others vs.
Parden Oraon reported in 2021 SCC Online SC 299,
wherein the Hon'ble Apex Court has categorically held
as under:
"8. The whole object of granting
compassionate appointment is to enable the
family to tide over the sudden crisis which
arises due to the death of the sole
breadwinner. The mere death of an employee
in harness does not entitle his family to such
source of livelihood. The 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 the job is offered to the
eligible member of the family. It was further
asseverated in the said judgment that
compassionate employment cannot be
granted after a lapse of reasonable period as
the consideration of such employment is not a
vested right which can be exercised at any
time in the future. It was further held that the
object of compassionate appointment is to
enable the family to get over the financial
crisis that it faces at the time of the death of
sole breadwinner, compassionate
appointment cannot be claimed or offered
after a significant lapse of time and after the
crisis is over."
Further, compassionate appointment
cannot be an alternative to regular appointment as
held by the Hon'ble Apex Court in the case of INDIAN
BANK AND OTHERS Versus PROMILA AND
ANOTHER reported in (2020) 2 SCC 729, relevant
part of which contained in Paragraph 4 and 20 of the
same is quoted as under:
"4. It is trite to emphasis, based on
numerous judicial pronouncements of this
Court, that compassionate appointment is
not an alternative to the normal course of
appointment, and that there is no inherent
right to seek compassionate appointment.
The objective is only to provide solace and
succor to the family in difficult times and,
thus, the relevancy is at that Stage of time
when the employee passes away.
20. We have to keep in mind the basic
principles applicable to the cases of
compassionate employment i.e. succor being
provided at the stage of unfortunate demise,
coupled with compassionate employment
not being an alternate method of public
employment.........................................."
9. In view of the aforesaid judicial
pronouncement and the fact that the petitioner's
husband died on 30.01.2008, compassionate
appointment to the petitioner, after more than 13
years of the death of the deceased employee, cannot
be sustained in the eye of law. As such, in the
peculiar facts and circumstances of the case, no relief
can be granted to this petitioner and consequently,
the instant writ application stands dismissed.
(Deepak Roshan, J.)
sm/ AFR
