Jharkhand High Court

Santosh Kumar vs The State Of Jharkhand Through on 20 December, 2022

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                L.P.A. No.381 of 2019
                         With
                 I.A. No.9685 of 2022
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Santosh Kumar, aged 23 yrs. s/o Late Atulya Prasad resident of Karma, P.O:-Karma, P.S.-Telaiya, District-Koderma (Jharkhand) .... .... Appellant Versus

1. The State of Jharkhand through, The Secretary, Department of Health and Family Welfare, P.O.-Hinoo, P.S.-Doranda, Jharkhand, Ranchi

2. Civil Surgeon-cum-Chief Medical Officer, Koderma, P.O & P.S:-

Koderma, District:-Koderma.

3. In-charge Medical Officer, Primary Health Centre, Koderma, P.O.

& P.S.-Koderma, District:-Koderma .... .... Respondents

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Appellant : Mr. Anisurzzama Khan, Advocate For the Resp.-State : Mr. Md. Asghar, AC to Sr. SC-II

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ORAL JUDGMENT

10/Dated: 20.12.2022

I.A. No.9685 of 2022

This interlocutory application has been preferred under Section

5 of the Limitation Act for condoning the delay of 443 days in

preferring this Letters Patent Appeal.

2. Heard.

3. No counter affidavit has been filed opposing the prayer for

condoning the delay.

4. Having regard to the averments made in this application, we

are of the view that the appellant was prevented by sufficient cause

from preferring the appeal within the period of limitation.

5. Accordingly, I.A.No.9685 of 2022 is allowed and delay of 443

days in preferring the appeal is condoned.

L.P.A. No.381 of 2019

6. The instant intra-court appeal preferred under Clause-10 of

Letters Patent Appeal is directed against the order/judgment dated

07.02.2019 passed by the learned Single Judge of this Court in

W.P.(S) No.2808 of 2018, whereby and whereunder, the learned

Single Judge while dismissing the writ petition, has refused to grant

any relief to the writ petitioner for seeking appointment on

compassionate ground.

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

petition, required to be enumerated, are as hereunder:-

It is the case of the writ petitioner that the father of the writ

petitioner, namely, Atulya Prasad, was working at Primary Health

Center, Koderma under the respondents has died in harness on

09.08.2008 leaving behind the writ petitioner and his legal heirs. The

date of birth of the writ petitioner is 25.02.1995.

It is the further fact of the case that the writ petitioner, at the

time of death of his father was minor and his age was 13 years six

months approximately. The elder brother of the writ petitioner, on the

death of the deceased employee, has filed an application for

appointment on compassionate ground. His application, since, was

kept pending, thereafter, the elder brother has approached to this

Court by filing writ petition being W.P.(S) No.18 of 2010 which was

disposed of on 17.02.2010 with a direction to the respondents to take

decision on the claim of one Bijay Kumar, the elder brother of the writ

petitioner.

The respondents-authorities have passed the reasoned order

holding therein that as per the norms, no compassionate

appointment can be granted as the spouse of the deceased

employee was already working as ANM at Koderma.

The aforesaid order dated 11.05.2010 was also challenged by

the elder brother of the writ petitioner by filing writ petition being

W.P.(S) No.7526 of 2012 which was withdrawn vide order dated 21.

10.2016 with a liberty to approach the appropriate forum.

The writ petitioner, thereafter, again filed a representation for

grant of appointment on compassionate ground on the ground that

his mother who was in service, has superannuated w.e.f. 31.01.2012

and he has no alternative source of income. Since, grievance has

not been redressed, therefore, the writ petition being W.P.(S)

No.2808 of 2018 has been filed seeking therein the direction for

consideration of the case of the writ petitioner for appointment on

compassionate ground.

But, the learned Single Judge has refused to pass any positive

direction by taking into consideration the fact that the writ petitioner

at the time of death of his father was minor and not eligible for

consideration of his case for appointment on compassionate ground,

which is the subject matter of the instant intra-court appeal.

8. Mr. Anisurzzama Khan, learned counsel appearing for the

appellant-writ petitioner has submitted that the claim of the writ

petitioner which has been dismissed, cannot be said to be justified

decision, for the reason, that on the date of death of the father, the

elder brother of the writ petitioner has made an application, but his

case was not considered on the ground that his mother was working

as ANM, having the source of income and as such, has not come

under the fold of consideration of financial crisis which is the object

and aim to provide appointment on compassionate ground.

Thereafter, the mother was superannuated w.e.f. 31.01.2012, an

application has been filed by the writ petitioner for consideration of

his case for appointment on compassionate ground and as such, the

ground which was negated on earlier occasion, i.e., the availability of

financial means on the ground of mother having working as ANM,

since was not available, therefore, the writ petitioner became eligible

to be considered having no alternative source of financial means.

But, the learned Single Judge has failed to appreciate the aforesaid

aspect of the matter, as such, the order impugned requires

interference.

9. Per contra, Mr. Md. Asghar, learned AC to Sr. SC-II appearing

for the respondent-State of Jharkhand has submitted that the

appointment on compassionate ground since is to be achieved by

providing alternative financial means in penury due to sudden

demise of the bread earner, but herein, the death occurred on

09.08.2008 but the application was filed by the writ petitioner after

superannuation of his mother from service, i.e., on 20.04.2018 and

as such, there is considerable delay of making application from the

date of death of father of the writ petitioner who has died on

09.08.2008. As such, submission has been made that the application

has been filed after delay of about 10 years and hence, it is not a fit

case for consideration of the claim of the writ petitioner for

appointment on compassionate ground.

The learned counsel, therefore, in the aforesaid backdrop, has

submitted that the order impugned requires no interference.

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

documents available on record as also considered the finding

recorded by the learned Single Judge in the impugned order.

11. This Court, before entering into the legality and propriety of the

impugned order, deems it fit and proper to refer the very object and

aim of the appointment on compassionate ground which is the issue

involved in the writ petition.

The State of Bihar has come out with a circular on 5th October,

1991, whereby and whereunder, the decision was taken to provide

appointment on compassionate ground in order to provide succor

due to sudden demise of bread earner.

The Hon'ble Apex Court, while interpreting with the very object

and aim of the appointment on compassionate ground in the case of

Food Corporation of India & Ors. Vrs. Raja Ram, (2010) 15 SCC

366, has held that the appointment on compassionate ground has to

be provided with the object and aim to provide immediate financial

relief to the dependent of the bereaved family.

The Hon'ble Apex Court yet in the other judgment rendered in

the case of Umesh Kumar Nagpal Vrs. State of Haryana & Ors.,

(1994) 4 SCC 138, has been pleased to hold that the appointment on

compassionate ground cannot be provided after delay, since, if the

dependent of the bereaved family has been able to survive,

therefore, the same cannot be provided by way of compassionate

ground. Since, appointment is to be provided on compassionate

ground being in the teeth of Article 14 and 16 of the Constitution of

India, cannot be made as the alternative mode of appointment, as

has been held in the case of Indian Bank & Ors. Vrs. Promila &

Anr., (2020) 2 SCC 729, wherein, at paragraph-4, it has been held

by the Hon'ble Apex Court, which reads as under:-

"4. It is trite to emphasise, 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 succour to the family in difficult times

and, thus, the relevancy is at that stage of time

when the employee passes away."

Herein, in the given facts of the case, undisputedly, the father

of the writ petitioner, has died on 09.08.2008, thereafter, the elder

brother of the writ petitioner had made an application for appointment

on compassionate ground. But, the said application having not been

decided, therefore, the writ petition being W.P.(S) No.18 of 2010 was

filed. A coordinate learned Single Judge, of this Court while disposing

of the writ petition, has granted liberty to the elder brother of the writ

petitioner to approach the authority for consideration of his claim.

The elder brother, in the light of the said order, has submitted

his representation but the same was rejected on the ground that his

mother was already working as ANM on the date when such

application was filed. The elder brother of the writ petitioner,

thereafter, has again approached to this Court by filing writ petition

being W.P.(S) No.7526 of 2012 but the same was withdrawn vide

order dated 21.10.2016 with a liberty to approach the appropriate

forum.

The writ petitioner after lapse of two years from the date of

withdrawal of the aforesaid writ petition, has made an application for

consideration of his case for appointment on compassionate ground

by filing an application on 20.04.2018, but the authority concerned

has not taken any decision, as such, writ petition being W.P.(S)

No.2808 of 2018 has been filed, which is the subject matter of the

instant appeal.

12. The learned Single Judge has appreciated the fact that on the

date of death of the father of the writ petitioner, i.e., on 09.08.2008,

the writ petitioner was only having 13 years of age since his date of

birth as per the record is 25.02.1995.

13. The writ petitioner being minor on the date of death of his

father, has taken as one of the cause for declining to pass positive

direction by the learned Single Judge in favour of the writ petitioner.

14. The second ground has been taken that the elder brother has

also prayed for appointment on compassionate ground but the same

was rejected on the ground that the mother of the writ petitioner was

already working as ANM, the post under the regular establishment of

the State Government, therefore, the financial means having been

available, the case of the elder brother has not been considered to

be fit in absence of any penury.

The writ petitioner, thereafter, has approached the authority by

filing representation on 20.04.2018, i.e., after delay of 10 years from

the date of death of his father. Thus, admittedly, there is delay of 10

years in filing an application for appointment on compassionate

ground and as such, in our considered view, the purpose for which,

the policy has been carved out to provide appointment on

compassionate ground has already been meted out, since, the family

of the deceased employee, has been able to survive for a period of

10 years, as such, it cannot be considered to be a case to provide

appointment, since, the appointment on compassionate ground

cannot be made as the alternative mode for appointment being in the

teeth of Article 14 and 16 of the Constitution of India.

The Hon'ble Apex Court in this regard, while taking into

consideration the issue of appointment on compassionate ground

which was sought for after delay of about 10 years, which has been

held therein, since, it was the bereaved family who has been able to

survive for 9 years, therefore, in such circumstances, there cannot

any direction to provide appointment on compassionate ground, as

has been held by the Hon'ble Apex Court in the judgment rendered

in the case of Central Coalfields Limited through its Chairman

and Managing Director & Ors. Vrs. Parden Oraon, 2021

SCCOnline 299, wherein, it has been held at para-8 and 9, which

reads 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 family1. 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.

9. We are in agreement with the High Court that the reasons given by the employer for denying

compassionate appointment to the Respondent's son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the Respondent's husband is missing since 2002. Two sons of the Respondent who are the dependents of her husband as per the records, are also shown as dependents of the Respondent. It cannot be said that there was any financial crisis created immediately after Respondent's husband went missing in view of the employment of the Respondent. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, we are convinced that the Respondent's son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondent's husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondent's son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing."

15. This Court, after considering the ratio laid down by the Hon'ble

Apex Court regarding the object to provide appointment on

compassionate ground and coming to the fact of the given case that

the death has admittedly occurred in the year, 2008 but the

application was filed after lapse of about more than 10 years and as

such, the object for which the appointment on compassionate ground

is provided, has lost its force.

16. The learned Single Judge, after taking into consideration the

aforesaid aspect of the matter if declined to pass positive direction,

the same cannot be said to suffer from any error.

17. Accordingly, this Court, after having discussed the fact in

entirety and taking into consideration the finding recorded by the