Jharkhand High Court

Shwet Nisha vs The State Of Jharkhand on 9 September, 2024

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  L.P.A. No.170 of 2023
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Shwet Nisha, D/O-Late Sanu Kumar Das, Aged About 35 Years, Resident of-Camp-II, Q.No.1E/7, Bokaro Steel City, P.S. Sadar, P.O.- Bokara Steel City, District-Bokaro, Jharkhand .... .... Appellant Versus

1. The State of Jharkhand.

2. Distrect establishment committee, through the Deputy Commissioner, Bokaro P.O. & P.S. Bokaro Steel City, District Bokaro, Jharkhand.

3. The Director project and land Rehabilitation, Bokaro, sector I Bokaro steel city, P.O.&P.S. chas Bazar, Bokaro Steel City, District Bokaro.

4. The Establishment Deputy Collector, Bokaro Steel City, Bokaro, P.O. P.S.-Bokaro, Jharkhand .... .... Respondents

CORAM : HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN KUMAR RAI

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For the Appellant : Mrs. Nalini Jha, Advocate For the State : Mr. Sushant Kumar, AC to SC-II

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05/Dated: 09.09.2024

Per Sujit Narayan Prasad, A.C.J.

1. This interlocutory application has been preferred under Section

5 of the Limitation Act for condoning the delay of 24 days in

preferring this Letters Patent Appeal.

2. Heard.

3. In view of the submissions made on behalf of the parties and

the averments made in the interlocutory application, we are of the

view that the appellant was prevented by sufficient cause in

preferring the appeal within the period of limitation.

4. Accordingly, I.A.No.6108 of 2023 is allowed and delay of 24

days in preferring the appeal is condoned.

Prayer

1. The instant appeal under clause-10 of Letters Patent is

directed against the order dated 24.01.2023 passed in W.P.(S)

No.3128 of 2020 by the learned Single Judge, whereby and

whereunder, the prayer made on behalf of the writ petitioner for

consideration of her case for appointment on compassionate ground

has been rejected, has been declined to be interfered with.

Facts

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

petition, required to be enumerated which reads as under:-

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

petitioner died in harness in the year, 2017 leaving behind his wife,

two daughters and one son.

4. The writ petitioner has proposed her name as dependent of

deceased father for appointment on compassionate ground on the

ground that she would look after her family.

5. After the death of her father, she prayed before the concerned

authority to provide employment on compassionate ground.

6. The only son and daughter have given no objection for getting

employment on compassionate ground after death of their father. But

the respondent authority has rejected the claim of the writ petitioner

by not providing employment on compassionate ground.

7. It is evident from the factual aspect that the father of the writ

petitioner since has died in harness and as such, she, being the

daughter said to be married, had made an application for

consideration of her case for appointment on compassionate ground.

8. The authority having been taken no decision, as such, she has

moved before this Court by filing writ petition being W.P.(S) No.3128

of 2020.

9. The stand has been taken on behalf of the State that as per the

Rule, the married daughter is not eligible to get the appointment on

compassionate ground since the married daughter will not come

under the definition of 'dependent'.

10. Further, the ground was taken that the writ petitioner was

having with a brother who although has given no objection but he

has disclosed at the time of giving no objection that he is working in

Airtel.

11. The learned Single Judge, on the basis of the said ground, has

refused to pass positive direction in favour of the writ petitioner,

hence, the present appeal.

Argument of the appellant-writ petitioner

12. Learned counsel for the appellant- writ petitioner has submitted

that admittedly, the writ petitioner was married at the time of demise

of her father but as per the ground which has been taken while

refusing to pass positive direction by the learned Single Judge,

cannot be said to be just and proper.

13. The learned Single Judge, therefore, has not appreciated the

aforesaid fact, hence, the impugned order needs to be interfered

with.

Arguments of the Respondent-State

14. While on the other hand, Mr. Sushant Kumar, learned AC to

SC-II appearing for the respondent-State has defended the

impugned order by referring to the Rule which has been notified by

the State in the year, 2015, wherein, the provision has been made

that the married daughter of the deceased employee, if any, will not

come under the definition of 'dependent' and for coming to the

aforesaid consideration of dependent, the married daughter is to

establish her case but the writ petitioner herein, has not established

her case that how she is the dependent upon the income of her

father, rather, the admitted case of the writ petitioner that she was

married at the time of demise of her father. Further, the son of the

deceased employee is already there but he has denied to get the

opportunity of appointment on compassionate ground, since, he was

working in a Company, i.e., Airtel.

15. Learned State Counsel, based upon the aforesaid ground, has

submitted that if the learned Single Judge has taken into

consideration the aforesaid aspects of the matter while dismissing

the writ petition, the same cannot be said to suffer from an error.

Analysis

16. This Court has heard the learned counsel for the parties and

gone across the finding recorded by the learned Single Judge in the

impugned order.

17. It needs to refer herein that the State of Jharkhand has come

out with the notification in the year, 2015 laying down the Scheme to

provide appointment on compassionate ground which is in

supersession to the earlier Rule, which was prevalent since

05.10.1999.

18. The 'dependent' has been defined therein, for ready reference,

the definition of 'dependent' is being referred as under:-

"(4) आश्रित परिवाि से क्या तात्पर्य है ?

सिकािी सेवक के श्रनम्नश्रिखित सदस्य सीधे आश्रित माने जार्ेंगे :-

(i) पत्नी/पश्रत :- र्था खथथश्रत।

(ii) पुत्र / श्रवधवा पुत्रवधू।

(iii) अश्रववाश्रहत / श्रवधवा/तिाकशुदा/परित्यक्ता पुत्री एवं श्रववाश्रहत पुत्री जो सिकािी सेवक की मृत्यु के समर् उसपि पूर्यतर्ा आश्रित िही हों।

(iv) दत्तक पुत्र/दत्तक अश्रववाश्रहत पुत्री (श्रहन्दु एडाप्शन एण्ड मेंटेनेन्स एक्ट 1956 के प्रावधान के अनुसाि )"

19. The writ petitioner, is claiming herself to be the dependent of

the deceased employee, being a married daughter, has made an

application for appointment on compassionate ground. She has also

presented before the authority concerned, as her brother who since

was working in Airtel, has given no objection, so that, consideration

of case for appointment on compassionate ground on account of

death of her father, will be done.

20. The competent authority has considered the claim of the writ

petitioner but having not found anything on record regarding the

dependency upon the income of the deceased father, has rejected

the claim of the writ petitioner.

21. The said decision has been carried before this Court by filing

writ petition being W.P.(S) No.3128 of 2020, wherein, the learned

Single Judge has refused to pass positive direction in favour of the

writ petitioner, which is the subject matter of the present appeal.

22. The law with respect to appointment on compassionate ground

has been settled regarding the consideration to be made on the

basis of the terms and conditions of the Scheme, reference in this

regard may be made to the judgment rendered by the Hon'ble Apex

Court in the case of Canara Bank and Anr. v. M. Mahesh Kumar,

(2015) 7 SCC 412, wherein the question fell for consideration was

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 (para-12).

23. The issue about applicability of the scheme has been

considered by the Hon‟ble Apex Court in another judgment rendered

in State Bank of India & Ors. v. Jaspal Kaur, (2007) 9 SCC 571,

wherein, it has been laid down that the 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, for ready reference, the relevant paragraph of the

said judgment is being referred as under:-

"26. Finally in the fact situation of this case, Shri Sukhbir Inder Singh (late), Record Assistant (Cash & Accounts) on 1-8-1999, in the Dhab Wasti Ram, Amritsar Branch, passed away. The respondent, widow of Shri Sukhbir Inder Singh applied for compassionate appointment in the appellant Bank on 5-2-2000 under the scheme which was formulated in 2005. The High Court also erred in

deciding the matter in favour of the respondent applying the scheme formulated on 4-8-2005, when her application was made in 2000. A dispute arising in 2000 cannot be decided on the basis of a scheme that came into place much after the dispute arose, in the present matter in 2005. Therefore, the claim of the respondent that the income of the family of the deceased is Rs 5855 only, which is less than 40% of the salary last drawn by late Shri Sukhbir Inder Singh, in contradiction to the 2005 scheme does not hold water."

24. The Hon‟ble Apex Court, in Commissioner of Public

Instructions and Others Vs. K. R. Vishwanath, (2005) 7 SCC 206,

after taking into consideration the 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, for ready reference,

the relevant paragraph of the said judgment is being referred as

under:-

"9. As was observed in State of Haryana v. Rani Devi [(1996) 5 SCC 308 : 1996 SCC (L&S) 1162 : AIR 1996 SC 2445] , it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in- harness scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi case [(1996) 5 SCC 308 : 1996 SCC (L&S) 1162 : AIR 1996 SC 2445] it was held that scheme regarding appointment on compassionate ground if extended to

all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In LIC of India v. Asha Ramchhandra Ambekar [(1994) 2 SCC 718 : 1994 SCC (L&S) 737 : (1994) 27 ATC 174] it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana [(1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased."

25. It has been held in the aforesaid judgment that appointment on

compassionate ground is an exception to Article 14 and 16 of the

Constitution of India, which cannot be claimed as a matter of right

and further, the appointment on compassionate ground is to be

provided on the basis of the condition stipulated in the scheme.

26. Adverting to the factual aspect of the present case, the

requirement as under Rule, 2015 is that the married daughter is to

establish the fact about her dependency upon the bread earner, who

had died in harness.

27. The ground has been taken by the respondent-State that the

writ petitioner was married at the time of demise of her father and

nothing has been brought on record to substantiate that the daughter