Sheetal Kumari vs The State Of Jharkhand Through The ...
2021 Latest Caselaw 1463 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
            L.P.A. No.200 of 2019
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Sheetal Kumari, aged about 51 years, daughter of Late Raghubir Ram, wife of Surag Prasad, resident of Memorial Road, Belwatika, P.O. & P.S. Daltonganj, District Palamau .... .... Appellant Versus

1. The State of Jharkhand through the Secretary, Department of Agriculture, Animal Husbandry and Cooperative, having office at Nepal House, Doranda, P.O. & P.S. Doranda, District Ranchi

2. Under Secretary, to the Government of Jharkhand, Department of Agriculture, Animal Husbandry and Cooperative, having office at Nepal House, Doranda, P.O. & P.S. Doranda, District Ranchi

3. Joint Director (Agriculture), Krishi Bhawan, Kanke Road, P.O. & P.S. Gonda, District Ranchi

4. District Agriculture Officer, Palamau, P.O. & P.S. Daltonganj, District Palamau

5. Divisional Commissioner, Palamau, P.O. & P.S. Daltonganj, District Palamau ...... ..... Respondents

CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Mr. Mahesh Kumar Sinha, Advocate For the Respondents : Mr. Devesh Krishna, SC(Mines)-III

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ORAL JUDGMENT 08/Dated: 23.03.2021

The matter has been heard with the consent of learned counsel for

the parties through video conferencing. There is no complaint about any

audio and visual quality.

2. The instant intra-court appeal is directed against the order/judgment

dated 04.12.2018 passed by the learned Single Judge of this Court in

W.P.(S) No.4962 of 2018, whereby and whereunder, the writ Court has

declined to interfere with the order as contained in Memo No.5091 dated

22.07.2009 issued under the signature of Under Secretary to the

Government of Jharkhand, Ranchi by dismissing the writ petition.

3. The brief facts of the case required to be enumerated which reads

as hereunder:-

The father of the writ petitioner while working as Grade-III employee

as Truck Driver in the Department of Agriculture, Palamau, had died in

harness on 23.07.1987.

Subsequently, the writ petitioner, being the daughter of the

deceased employee, made a representation before the respondents for

appointment on compassionate ground. Pursuant thereto, the case of the

writ petitioner was considered and she was appointed to the post of

Anusevika vide Departmental Order No.5 dated 16.01.1992. Thereafter,

the writ petitioner had started discharging her duty without any complaint.

The grievance of the writ petitioner is that she having requisite

qualification to be appointed to Class-III post and therefore, on

consideration of her representation, her case was recommended for

Grade-III post but illegally and arbitrarily was appointed to Class-IV post,

aggrieved thereof, the writ petitioner has represented before the

respondents for consideration of her case for appointment to Class-III post

as she fulfills all requisites qualification. The respondents have considered

the aforesaid representation and made recommendation vide Minutes of

Meeting dated 01.12.2001 taking into consideration that she possessed

qualification of Matriculation at the time of appointment but she has never

been appointed to Class-III post.

Subsequently, the said claim was rejected in view of Clause-9 of

Circular dated 05.10.1991 vide order dated 22.07.2009.

The writ petitioner being aggrieved with the same has preferred the

writ petition being W.P.(S) No.4962 of 2018 inter-alia taking the plea that

since she was fulfilling all requisites qualification to hold the post of Class-

III but ignoring the same, she has wrongly been appointed to Class-IV

post.

She, thereafter, had made a representation for her appointment to

Class-III post, which was considered by the duly constituted Committee

and her case was also recommended but finally, her claim was rejected by

taking the plea of Clause-9 of the Circular dated 05.10.1991.

According to the writ petitioner, the respondent authorities ought to

have appointed the writ petitioner initially for Class-III post, taking into

consideration her eligibility and educational qualification but having not

done so, the respondent State has committed gross illegality.

The aforesaid contention has seriously been objected by the

respondent State of Jharkhand on the ground that Clause-9 of the Circular

dated 05.10.1991 is very clear that once a person has been appointed on

compassionate ground, it is not open to the employee to seek second

compassionate appointment on a different class.

The learned Single Judge after taking into consideration the plea of

the State and after perusal of Clause-9 of the Circular dated 05.10.1991,

has dismissed the writ petition, against which, the present intra-court

appeal has been preferred.

4. Mr. Mahesh Kumar Sinha, learned counsel appearing for the

appellant-writ petitioner has submitted that the learned Single Judge has

not appreciated the fact that the writ petitioner even though was eligible

and educationally qualified to hold the post of Class-III and subsequently,

her case was also recommended by the Compassionate Committee but

ignoring the said recommendation, the claim of the writ petitioner has

been rejected which should not have been done as because when the writ

petitioner was eligible to hold the post of Class-III, she should have been

appointed at initial stage only to Class-III post, even accepting that at the

initial stage, she was not appointed but subsequently, when the

recommendation of the Compassionate Committee has been made for her

appointment to Class-III post, the rider of Clause-9 of the Circular dated

05.10.1991 should not have been taken by the respondent authority, on

the principle that the illegality, if any, committed by the respondent

authority by not appointing the writ petitioner to Class-III post, the same

should have been rectified by giving her appointment to Class-III post at

the subsequent stage but this aspect of the matter has not been

appreciated by the learned Single Judge, therefore, the same is not

sustainable in the eyes of Law.

5. Per contra, Mr. Devesh Krishna, learned SC(Mines)-III appearing

for the respondents-State of Jharkhand has submitted by defending the

order passed by the learned Single Judge that the appointment on

compassionate ground is to be provided under the Scheme which has

been provided under Circular dated 05.10.1991, wherein a condition

under Clause-9 states that once the appointment on compassionate

ground has been provided, there cannot be second appointment on

compassionate ground and taking into consideration the aforesaid Clause,

the claim of the writ petitioner has been rejected, which has rightly not

been interfered by the learned Single Judge, therefore, the order passed

by the learned Single Judge requires no interference.

6. We have heard the learned counsel for the parties, perused the

documents available on record as also the finding recorded by the learned

Single Judge.

7. The admitted fact herein is that the father of the writ petitioner was

working on Class-III post as Truck Driver in the Department of Agriculture,

Palamau, has died in harness on 23.07.1987.

The writ petitioner has made an application for appointment on

compassionate ground, in pursuant to the provision of Circular issued on

05.10.1991 by the Erstwhile State of Bihar through its Personnel

Administrative Reforms Department.

The case of the writ petitioner was placed before the District

Compassionate Committee and she was recommended for appointment

to such post. Subsequently, she has been appointed to the post of

Anusevika vide Departmental Order No.5 dated 16.01.1992 in Class-IV

cadre.

The writ petitioner has accepted the said appointment and

continued to discharge her duty. However, she has made an application

for reconsideration of her case for appointment on compassionate ground

by appointing her in Class-III post but the said claim has been rejected

vide order as contained in Memo No.5091 dated 22.07.2009 issued by the

Under Secretary to the Government of Jharkhand by taking the ground of

the provision of Clause-9 contained in Memo No.3/C-2067/90Ka. 13.293

dated 05.10.1991. The said order has been assailed by filing the writ

petition in the year 2018 being W.P.(S) No.4962 of 2018.

8. It is the settled position of Law that appointment on compassionate

ground cannot be claimed as a matter of right as has been held by the

Hon'ble Apex Court in the case of Umesh Kumar Nagpal Vrs. State of

Haryana and Others, (1994) 4 SCC 138, wherein it has been held that 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 in view of 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 held by the

deceased, 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 only if it is satisfied that the family will not be able to meet

the crisis, a job is to be offered to the eligible member of the family.

In the case of Jagdish Prasad Vrs. State of Bihar and Another,

(1996) 1 SCC 301, Hon'ble Apex Court, while considering the object of

compassionate appointment held that the object of appointment of a

dependent of the deceased employees who died in harness is to relieve

unexpected immediate hardship and distress caused to the family by

sudden demise of the earning member of the family.

In the case of State of U.P. and Others Vrs. Paras Nath, AIR 1998

SC 2612, the Hon'ble Apex Court held that the purpose of providing

employment to a dependant 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. It was further observed that none of these considerations can

operate while the application is made after a long period of time.

In the case of Commissioner of Public Instructions and Others

Vrs. K. R. Vishwanath, (2005) 7 SCC 206, the Hon'ble Apex Court, after

taking into consideration its various judgments, reiterated that the

appointment to the public service can only be made on the touchstone of

Article 14 or 16 of the Constitution and compassionate appointment is an

exception to general constitutional mandate in the interest of justice under

peculiar circumstances.

From the law laid down by the Hon'ble Apex Court in various

judgments referred herein above, it is settled proposition that

compassionate appointment cannot be considered to be a source of

recruitment or another mode of recruitment to government/public service.

The object and purpose of compassionate appointment for the dependant

of the deceased-Government servant is to provide immediate financial

assistance to the family whose sole bread earner died leaving the family in

lurch. The purpose is to enable the family to overcome its immediate

financial needs. The compassionate appointment cannot be given as a

matter of course, and depends upon various factors, including the

financial condition of the family of the deceased and other relevant factors.

Since compassionate appointment is deviation from the

constitutional mandate contemplated by Article 14 and 16 of the

Constitution of India, which permits employment providing equal and fair

opportunity to all the eligible persons, it is necessary that the

compassionate appointment is regulated by law / rules so as not to nullify

the constitutional spirit.

The State of Jharkhand has come out with a circular dated

05.10.1991 for consideration of candidature of one or the other

dependants of the deceased family. The authorities have also come out

with the another circular which was forwarded on 15.12.2011 which is in

continuation to the circular dated 05.10.1991, specifically laying emphasis

for implementation of the provision made under Condition No.9 (Ka and

Kha) which provides that appointment, if made on any post, the second

benefit would not be given or there will not be any change in the cadre or

the post.

In the case of State of Rajasthan vs. Umrao Singh, (1994) 6 SCC

560, wherein at paragraph-8 it has been held, which reads hereunder as:-

"8. Admittedly, the respondent's father died in harness while working as Sub-Inspector, CID (Special Branch) on 16-3-1988. The respondent filed an application on 8-4-1988 for his appointment on compassionate ground as Sub-Inspector or LDC according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 14-12-1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of "endless compassion'. Eligibility to be appointed as Sub Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Jude of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case."

9. The fact of the case in hand is that the writ petitioner has been

appointed initially in the year 1992 on compassionate ground to Class-IV

post. She has accepted the aforesaid appointment and rendered her

service fairly for a long period of about 26 years on the year of filing of the

writ petition from the date of appointment.

10. It is the settled position of Law that appointment on compassionate

ground is to be provided under the Scheme in terms thereof, the

appointment to the writ petitioner has been provided to Class-IV post by

virtue of Circular dated 05.10.1991. The said circular specifically provides

that there will not be second appointment on compassionate ground.

The Hon'ble Apex Court in the case of State of Rajasthan vs.

Umrao Singh (supra) has held that once appointment on compassionate

ground has been consummated, there cannot be second appointment on

compassionate ground.

11. This Court after applying the aforesaid proposition of Law as also

the specific condition of the Circular dated 05.10.1991 which prohibits for

providing second appointment on compassionate ground once it is

consummated, herein it has been consummated fairly for a period of 26

years from the date of appointment, since the writ petitioner has preferred

the writ petition only in the year 2018, although, the claim of the writ

petitioner has been rejected in the year 2009 and therefore, the

Administrative Authority while rejecting the claim of the writ petitioner for

second appointment on compassionate ground taking into consideration

the specific clause as contained under Clause-9 of the Circular dated

05.10.1991 cannot be said to suffer from error, it is for the reason that

when appointment has been provided to the writ petitioner in terms of the

Circular dated 05.10.1991 which also contains a clause/condition for not

providing second appointment on compassionate ground to a person,

therefore, the writ petitioner cannot be allowed to seek claim which is not

permissible under the Circular dated 05.10.1991 from which she has been

benefitted by providing appointment on Class-IV post., for ready

reference, Clause-9 of the Circular dated 05.10.1991 reads hereunder as:-

"(9)

''

Further, the appointment on compassionate ground is to mitigate

the immediate hardship which has been meted out by providing

appointment to the writ petitioner immediately after the death of her father

and if consideration would be given for appointment after lapse of

considerable period, the very spirit of the appointment on compassionate

ground will be frustrated.

12. So far as the question of recommendation made by the District

Compassionate Committee is concerned, which according to the writ

petitioner ought to have been accepted by the competent authority of the

State Government by appointing the writ petitioner to Class-III post, the

same is also having no force as any recommendation if made contrary to

the Statute/Regulation, the same does not bind the competent authority

having the power to appoint.

13. The learned Single Judge after taking into consideration these

aspects of the matter in entirety, as discussed hereinabove in detail, has

not interfered with the impugned decision of the concerned authority,

which according to us, does not require any interference.

14. In the result, the instant appeal fails and is, dismissed.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Rohit/-

N.A.F.R.