Abhay Shankar Prasad vs The Union Of India
2021 Latest Caselaw 3202 Jhar

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    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No. 4941 of 2019
    Abhay Shankar Prasad                              ....   .... Petitioner
                                    Versus
    1. The Union of India.
    2. The Director General of Defense Estates,
       Ministry of Defense, Govt. of India, New Delhi.
    3. The Principal Director, Defense Estates,
       Ministry of Defense, Govt. of India, Central Command, Lucknow.
    4. The Chief Executive Officer,
       Ramgarh Cantonment Board, Ramgarh.             .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE DR. S.N. PATHAK (Through Video Conferencing)

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    For the Petitioner            : Mr. Syed Ramiz Zafar, Advocate
    For the Union of India        : Mr. Rajiv Sinha, ASGI
    For the Respondent No.4 : Mr. Kalyan Roy, Advocate
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5 / 01.09.2021   Heard the parties.

2. The petitioner has approached this Court with a prayer for direction to the respondents to consider his case for compassionate appointment with all consequential benefits.

3. Facts of the case lie in a narrow compass. The father of petitioner died in harness on 20.5.2012 while working and posted as Staff Car Driver, Ramgarh. Thereafter, the mother of the petitioner made an application for compassionate appointment of his son (petitioner) before the respondent no.4. In spite of the fact that the petitioner made several representations before the respondent-authority, no decision has been taken thereon. Faced with the situation, the petitioner has earlier knocked this Court by filing W.P.(S) No. 6722 of 2017, which was allowed, directing the respondents to consider the case of the petitioner against the vacancies earmarked for 2018-19 as provided under the extent Official Memorandum. Pursuant thereto, the petitioner submitted his representation to the authority concerned, but the respondents did not pay any heed to the representation. Thereafter, the petitioner filed a contempt case before this Court and during pendency of the contempt application, the respondents enclosed the impugned letter, whereby, the respondents did not find his case fit for consideration as the petitioner has obtained lesser marks than other similarly situated persons, as minimum marks for coming into zone of consideration was 73 marks and the

petitioner had obtained 59 out of 100 as per weightage system approved by the Ministry of Defence. Aggrieved by the same, this writ petition has been filed.

4. Mr. Syed Ramiz Zafar, learned counsel appearing for the petitioner argues that father of the petitioner died in the year 2012 and soon thereafter the application was made for consideration of appointment on compassionate ground and the same ought to have been considered as per the prevalent Scheme of the year 2010, but the respondents slept over the matter for long seven years and it was only in 2019, the impugned stand has been taken. No explanation has been given as to why, order was not passed and the case of the petitioner was not considered. Learned counsel further argues that the respondents are changing their stand on different occasions, inasmuch as, earlier the claim of the petitioner was not considered on the ground that the application was not filled up in proper format, and it was only when the petitioner moved before this Court in W.P.(S) No. 6722 of 2017 and thereafter in contempt case, the case of the petitioner was considered in 2019 i.e. after seven years from the date of application. Learned counsel submits that the respondents were bound to consider the case of the petitioner for compassionate appointment as per scheme prevalent at that point of time. To buttress his argument, learned counsel places heavy reliance upon the decision in the case of Smt. Sushma Gosain and others, Vs. Union of India & Ors., reported in (1989) 4 SCC 468. Further reliance has been placed by learned counsel for the petitioner in the case of Canara Bank & Anr. Vs. M. Mahesh Kumar, reported in (2015) 7 SCC 412.

5. Lastly, learned counsel submits that the petitioner has not crossed the age of appointment and his case has not been rejected as yet and therefore, a direction may be given to the respondents to reconsider the case of the petitioner as per the Scheme prevalent at that point of time as and when future vacancy arises.

6. Per contra, counter affidavit has been filed by the respondent No.4 (Chief Executive Officer, Ramgarh Cantonment Board, Ramgarh). Mr. Kalyan Roy, learned counsel appearing for the respondent no.4 vehemently opposes the contention of the petitioner and submits that the case of the petitioner was duly considered and the petitioner has scored only 59 marks out of 100 and minimum required marks for consideration of appointment was 73. Therefore, his case has not been considered. In support of his contention, learned counsel places reliance on

the decisions in the case of Umesh Kumar Nagpal Vs. State of Haryana & Ors, reported in (1994) 4 SCC 138.

7. However, very fair stand has been taken by Mr. Kalyan Roy, learned counsel appearing for the respondent no.4 and candid statement has been made that even though no explanation has been given regarding the delay for not considering the case of the petitioner, but his case has not been rejected as on date. Learned counsel further submits that as and when fresh vacancy arises, the case of the petitioner shall be duly considered and if found suitable for appointment as per the scheme the same shall be considered in accordance with law.

8. Be that as it may, having gone through the rival contentions of the parties, this Court is of the considered view that the case of the petitioner needs due consideration. Admittedly, the respondents slept over the matter for long seven years. The reliance placed by learned counsel for the respondents in the case of Umesh Kumar Nagpal (supra) is not attracted in this case. It is not a case that the petitioner has preferred the application for consideration of compassionate appointment after a delay of several years. It is the respondents, who sat tight over the matter for several years. Admittedly, compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crises and the object is not to give a member of such family a post much less a post held by the deceased. It has also been brought to the knowledge of this Court that the Scheme prevalent at the time of making application was not considered, rather, than in vogue in the year 2019 was taken into consideration, which is not at all acceptable to this Court. The issue fell for consideration before the Hon'ble Apex Court in the case of Canara Bank & another Versus M. Mahesh Kumar, reported in (2015) 7 SCC 412 as to whether the Scheme passed in 2005 providing compassionate appointment or the Scheme then in vogue in 2019 is applicable to the respondent. Their Lordships in para-12, 13, 14 and 15 held as follows:-

"12. The main question falling for consideration is whether the Scheme passed in 2005 providing for ex gratia payment or the Scheme then in vogue in 1993 providing for compassionate appointment is applicable to the respondent.

13.The appellant Bank has placed reliance upon the judgment of this Court in Jaspal Kaur case to contend that the respondent's case cannot be considered on the basis of "Dying in Harness Scheme 1993" when the new 2005 Scheme providing for ex gratia payment had been put in place.

14.In Jaspal Kaur Case, Sukhbir Inder Singh emplyoyee of State Bank of India, Record Assistant (Cash and Account) passed away on 1.8.1999. The widow of the employee applied for compassionate appointment in State Bank of India on 5.2.2000. On 7.1.2002, the competent authority of the Bank rejected the application of Jaspal Kaur in view of the Scheme vis-a-vis the financial position of the Family. Against that decision of the competent authority, the respondent filed writ petition before the Punjab and Haryana High Court which had directed to to consider the case of Jaspal Kaur by applying the Scheme formulated on 4.8.2005 when her application was made in the year 2000 cannot be decided on the basis of a scheme that was put in place much after the dispute.

15.By perusal of the judgment in Jaspal Kaur case, it is apparent that the judgment specifically states that claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim."

9. Admittedly, the scheme or policy is binding both on the employer and the employee. The scheme has to be strictly construed and confined only to the purpose it seeks to achieve. Since the petitioner has been made to suffer at the hands of respondents and consideration has been shown only with regards the Scheme which suits the respondents, the same is not acceptable to this Court.

10. However, since a fair submission has been made by Mr. Kalyan Roy, learned counsel appearing for the respondent Board, let the respondent concerned consider the case of the petitioner for compassionate appointment as and when future vacancy arises, subject to availability of the post, taking into consideration the fact that already the petitioner has been made to suffer, as his case ought to have been considered in the year 2012 itself. It is also made clear that at the time of consideration, the respondents shall give preference to the petitioner above the others as his case was to be considered in the year 2012 itself and the petitioner was not at fault for the same. Needless to say that the case of the petitioner shall be considered as per paragraph-4 of 2010 scheme.

11. This writ petition stands allowed with the aforesaid observations and directions.

(Dr. S. N. Pathak, J.) R.Kr.