Uttam Kumar Gupta Aged About 35 ... vs State Of Jharkhand Through ...
2021 Latest Caselaw 3860 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI

                  L.P.A No. 333 of 2019
                         with
                   I.A No.1163 of 2021
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Uttam Kumar Gupta Aged about 35 years, son of late Daya Shankar Prasad, resident of Qr. No. A/6, Postal Colony, P.O. + P.S- Golmuri, Jamshedpur, District- East Singhbhum ...... Petitioner/Appellant Versus

1.State of Jharkhand through Secretary, Primary and Secondary Education Government of Jharkhand, having its office at Project Bhawan, P.O. + P.S. Dhurwa, District- Ranchi.

2.Deputy Commissioner, having its office at P.O. + P.S + District-East Singhbhum.

3.Deputy Director of Education, having its office at Project Bhawan, P.O.-Ranchi, P.S. Ranchi, District-Ranchi.

4.District Education Officer, Dalbhum Garh, P.O + P.S- Dalbhum Garh, District -East Singhbhum.

5.Area Education Officer, Dalbhum Garh, P.O + P.S- Dalbhum Garh, District -East Singhbhum.

6.Principal, Hatia Para Middle School, Dalbhum Garh, P.O + P.S-Dalbhum Garh, District -East Singhbhum.

                                  ..... .....     Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE AMBUJ NATH

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For the Appellant : Mr. Abhay Kumar Mishra, Advocate For the Respondents : Mr. Sandeep Verma, A.C to Sr. S.C-III

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Oral Judgment:

Order No.6/Dated: 08th October, 2021

I.A. No.1163 of 2021

Heard learned counsel for the parties.

2. This Interlocutory Application has been filed for

condoning the delay of 7 days, which has occurred in

preferring the present appeal.

3. Having regard to the facts and circumstances as

mentioned in the application and also considering the facts

that no counter affidavit has been filed, opposing the

interlocutory application, by the respondents, we are of the

opinion that the appellant was prevented by sufficient

cause from preferring the appeal within the period of

limitation.

4. Accordingly, the delay of 7 days in preferring the

present appeal is hereby condoned and this application

stands allowed.

L.P.A. No.333 of 2019

5. The instant intra-court appeal under Clause 10 of the

Letters Patent is preferred against the order/judgment

dated 19.12.2018 passed by learned Single Judge of this

Court in W.P.(S) No.651 of 2008 whereby and whereunder,

the claim of the writ petitioner, for providing him

appointment on compassionate ground on account of death

of his father in harness on 05.07.1998 while working as

'Assistant Teacher' in Hatia Para Middle School,

Dalbhumgarh, District East Singhbhum, has been rejected

by not interfering with the impugned order as contained in

memo no. 904 dated 25.09.2007.

6. The brief facts of the case, as per the pleading made in

the writ petition, which require to be enumerated, read

hereunder as:

The father of the writ petitioner while working as

Assistant Teacher at Hatia Para Middle School,

Dalbhumgarh, District East Singhbhum died in harness on

05.07.1998 leaving behind three daughters and one son.

After the death of the father, the elder sister of the

petitioner submitted representation before the respondents-

authorities for payment of death-cum-retiral benefits as

also for compassionate appointment but it did not evoke

any response.

Thereafter, the present petitioner moved before this

Court by filing writ petition being W.P. (S) No. 6199 of

2005, which was disposed of vide order dated 01.12.2005

with a direction to the writ petitioner to file representation

regarding death-cum-retiral benefits as also for

compassionate appointment before respondents-

authorities, who shall consider the same and pass

appropriate order.

Pursuant thereto, the writ petitioner submitted

representation before the respondents-authorities for

appointment on compassionate ground which was rejected

vide order as contained in Memo No. 904 dated 25.09.2007

on the ground that the application has been filed belatedly

i.e. after lapse of seven years.

Being aggrieved with the order of rejection of claim of

the writ petitioner regarding compassionate appointment,

the writ petitioner again approached this Court by invoking

the writ jurisdiction of this Court conferred under Article

226 of the Constitution of India, wherein the learned Single

Judge after considering the reasons assigned in the

impugned order passed by the competent authority has

refused to interfere with the same, which is the subject

matter of the present intra-Court appeal.

7. Mr. Abhay Kumar Mishra, learned counsel for the writ

petitioner has submitted that the learned Single Judge has

not considered the fact that prior to rejection of the claim of

the writ petitioner the sister of the writ petitioner had made

application for appointment on compassionate ground but

no decision was taken thereon. Thereafter, the writ

petitioner approached this Court by filing writ petition

being W.P. (S) No. 651 of 2008 and therefore, there is no

laches on the part of the writ petitioner rather there is

laches on the part of the administrative authority for which

the writ petitioner cannot be blamed and left out to suffer.

He further submits that the death of the father of the writ

petitioner has occurred on 05.07.1998 and if the learned

Single Judge would have consider the fact about making a

application by the sister of the writ petitioner, the matter

could have been different since the sister of the writ

petitioner had filed application within reasonable time

before the competent authority. Therefore, according to the

learned counsel for the petitioner, the order passed by the

learned Single Judge requires interference by this Court.

8. Mr. Sandeep Verma, learned A.C to Sr. S.C-III

appearing for the respondents submits by referring to the

circular dated 25.05.1989 which mandates that the period

of limitation for making an application for compassionate

ground as five years. Admittedly, herein the death of the

father of the writ petitioner took place on 05.07.1998 and

thereafter the application for compassionate appointment

was filed by the writ petitioner on 10.02.2006 i.e. after

lapse of reasonable period and therefore, the circular since

provides consideration of appointment on compassionate

ground on the basis of application for compassionate

ground to be filed within a period of five years from the

death of the deceased-employee, the decision taken by the

administrative authority cannot be said to suffer from an

error.

He further submits that though the sister of the writ

petitioner made an application but that has not been finally

decided and even accepting that she had submitted

application which was not considered, she ought to have

approached the Court of law but she kept mum and

thereafter, the writ petitioner has approached this Court

invoking power conferred under Article 226 of the

Constitution of India, therefore that ground cannot be

taken to be proper ground for consideration of the case of

the writ petitioner for grant of appointment on

compassionate ground. He further submits that on the

basis of these factual aspects, the order passed by the

learned Single Judge requires no interference.

9. We have heard learned counsel for the parties,

perused the documents available on record as also the

finding recorded by the learned Single Judge in the order

impugned.

The admitted fact is that the death of the father of the

writ petitioner took place on 05.07.1998 while he was

working as 'Assistant Teacher' in Hatia Para Middle School,

Dalbhumgarh, District East Singhbhum. The writ petitioner

made an application for compassionate ground on

10.02.2006 after a period of about eight years from the date

of death of his father, for which no cogent reason has been

assigned. The said application of the writ petitioner was

rejected by the competent authority of the State

Government vide order dated 25.09.2007.

Being aggrieved thereof, the writ petitioner

approached this Court by invoking writ jurisdiction of this

Court conferred under Article 226 of the Constitution of

India. The writ Court, agreeing with the stand taken by the

competent authority of the State Government in its order

dated 25.09.2007 whereby claim of the petitioner for

compassionate appointment was rejected being time-

barred, dismissed the writ petition.

10. It is settled position of law that the whole object of

granting compassionate employment is 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 rather it is for the reason that a death of an

employee in harness may take away the source of livelihood

of the family. Thus, 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 Jagdish Prasad Vrs. State of Bihar and Another

reported in (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 dies 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 State of U.P. and Others Vrs. Paras Nath

reported in AIR 1998 SC 2612 the Hon'ble Apex Court

held that 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. It was further

observed that none of these considerations can operate

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

In Commissioner of Public Instructions and Others

Vrs. K. R. Vishwanath reported in (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

Articles 14 or 16 of the Constitution and compassionate

appointment is an exception to general constitutional

mandate in the interest of justice under peculiar

circumstances. It was further observed that where law

prescribes limitation for making an application for

compassionate appointment, it has to be adhered to.

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

various judgments referred herein above, it is settled

proposition of law 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

dependent 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. 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 Articles 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.

This Court, taking into consideration the fact that the

application for compassionate appointment was submitted

after considerable delay of about eight years, and the laws

laid down by the Hon'ble Apex Court, as referred herein

above, is of the view that the learned Single Judge has not

committed any error in concurring with the view taken

competent authority of the State Government for rejecting

the claim of the writ petitioner.

12. Learned counsel for the writ petitioner has submitted

that the application for compassionate appointment was

initially submitted by his sister but no decision was taken,

even accepting the same no relief can be granted as before

the writ Court the cause of action pertains to the party

aggrieved but herein even if the sister was aggrieved as no

decision was taken by the administrative authority, it was

incumbent upon the sister of the writ petitioner approach

the writ Court but she has chosen not to approach this

Court rather her brother approached the writ Court by

initially by filing writ petition being W.P.(S) No.6199 of 2005

and thereafter the present writ petition, outcome of which

is the subject matter of present intra-court appeal.

Therefore, according to our considered view, there is

no force in the argument advanced by learned counsel for

the writ petitioner-appellant for granting relief to the writ

petitioner.

13. This Court, after taking into consideration the facts in

entirety and the judicial pronouncements as referred above

and considering the fact that the learned Single Judge has

delve upon the issue of limitation, finds no reason to

interfere with the impugned order passed by the learned

Single Judge.

14. Accordingly, the appeal fails and is dismissed.

15. Mr. Mishra, learned counsel for the petitioner submits

that the retiral benefit due to the writ petitioner after death

of the father of the writ petitioner has not been paid.

If that be so, the State authority-Secretary, Literacy

and Education Department is directed to ensure payment

of admissible retiral benefit in favour of the writ petitioner

within a period of three months from the date of

receipt/production of copy of this order.

16. With the aforesaid direction the writ petition stands

disposed of.

(Sujit Narayan Prasad, J.)

(Ambuj Nath, J.) Alankar/Saket/-

A.F.R.