Punjab-Haryana High Court
Nitin Negi vs State Consumer Disputes Redressal ... on 29 January, 2024
Neutral Citation No:=2024:PHHC:011793
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CWP-17052 of 2020
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-17052 of 2020
Reserved on: 09.01.2024
Pronounced on: 29.01.2024
Nitin Negi
......Petitioner
Versus
State Consumer Disputes Redressal Commission, Punjab and another
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Argued by: Mr. Madhav Pokhrel, Advocate,
for the petitioner.
Mr. T.P.S. Walia, AAG, Punjab.
NAMIT KUMAR, J.
1. Petitioner has approached this Court by way of filing the
present writ petition under Article 226 of the Constitution of India
seeking a writ of certiorari for setting aside the order dated 15.07.2020
(Annexure P-7) issued by respondent No.2 vide which the claim of the
petitioner for appointment on compassionate basis has been rejected on
the ground that he has not passed the Punjabi language examination
upto 5th standard, which is required for appointment as peon and
secondly that as per guidelines, an application for compassionate
appointment beyond five years cannot be entertained as father of the
petitioner died on 31.12.2001.
2. The brief facts leading to the filing of the present petition
are that father of the petitioner Sh. Jagdish Singh Negi son of Sh. Gian
Singh Negi was working as Class-IV employee (Peon) with respondent
No.2 i.e. District Consumer Disputes Redressal Forum, Shaheed
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Bhagat Singh Nagar, Punjab, and while in service he died on
31.12.2001 leaving behind the following family members: -
Sr. Name of the member Age as on Relation with the
No. 31.12.2001 deceased (Jagdish
Singh Negi)
1. Parmila 23 years Wife
2. Nitin Negi (petitioner) 8 months Son
3. Sarveshari 18 years Sister
4. Trilochani Devi 57 years mother
3. Mother of the petitioner (wife of the deceased) moved first
application for compassionate appointment on 18.01.2002 and the
second application on 19.04.2002 to respondent No.2. In the second
application dated 19.04.2002 it was submitted by her that she has not
done any studies in Punjabi subject till date but she will pass 5th
standard examination very soon. However, vide letter dated
15.07.2002, it was conveyed to the mother of the petitioner that she was
not eligible for appointment to Class-IV post on compassionate ground
as she had not studied/passed Punjabi upto 5th standard, which is
minimum requisite qualification. Thereafter on 28.05.2003, she
submitted her 5th class certificate along with her application, which was
filed by stating that no Class-IV vacancy is available in the office and
the request will be considered as and when Class-IV vacancy occurs in
the office.
4. It is the case of the petitioner that his date of birth is
25.04.2001 and he was of the age of eight months when his father died
on 31.12.2001. He, on attaining the age of 18 years, attained majority
on 25.04.2019 and by that time had also passed matriculation
examination also. After a period of one year and fifteen days after
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attaining the age of majority, petitioner applied for appointment on
compassionate basis vide application dated 10.05.2020 (Annexure P-3).
Thereafter, vide letter dated 24.06.2020, respondent No.2 asked the
petitioner to submit the certificate showing that the petitioner has
passed the Punjabi language examination upto 5th standard. However,
petitioner submitted representation dated 10.07.2020, stating therein
that he has passed the matriculation (10th) examination from Punjab
School Education Board, but since he has not studied the Punjabi
subject as such, he requested that if he is given appointment, he will
appear in Punjabi language examination of 5th standard and will submit
the certificate by passing Punjabi language upto 5th standard within a
period of one year from the date of appointment. However, respondent
No.2 vide order dated 15.07.2020 rejected the claim of the petitioner
for appointment on compassionate basis on the grounds that he has not
passed the Punjabi language examination upto 5th standard, which is
required for appointment as peon and secondly that as per guidelines an
application for compassionate appointment beyond five years cannot be
entertained as father of the petitioner died on 31.12.2001.
5. Learned counsel for the petitioner has argued that claim of
the petitioner for appointment on compassionate grounds has wrongly
been rejected by respondent No.2 and the said action is totally illegal
and arbitrary. He submitted that the petitioner has attained the age of
majority on 25.04.2019 and also passed his matriculation examination
by that time and he submitted the application for appointment on
compassionate grounds on 10.05.2020, which has wrongly been
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rejected by respondent No.2 vide impugned order dated 15.07.2020
(Annexure P-7). He further submitted that although the petitioner has
not passed the Punjabi language examination of 5th standard, and if he
is given appointment, he shall pass the Punjabi language upto 5th
standard within a period of one year from the date of appointment. He
has further placed reliance upon Policy dated 21.11.2002 for
compassionate appointment issued by the Government of Punjab,
Department of Personnel. The relevant portion from the said policy is
as under: -
"No.11 10598/art 14420
GOVERNMENT OF PUNJAB
DEPARTMENT OF PERSONNEL
(Personnel Policies II, Branch)
Dated 21.11.2002 (Chandigarh)
To
All Heads of Departments.
Registrar, Punjab & Haryana High Court.
All Commissioners of Divisions
All Sub-Divisional Officers (Civil)
In the state of Punjab.
Subject:- Scheme for compassionate appointment-2000-
Grant of employment in the State Services on
compassionate grounds policy regarding.
Sir/Madam,
I am directed to address you on the subject noted above
and to say that at present, the policy regarding grant of
employment in the State Services Class-III and IV on
compassionate grounds is mainly contained in circular
letter No.11/27/94-2PPI/2364, dated 05.02.1996. This
policy was framed on the basis of the judgment of the
Hon'ble Supreme Court of India delivered in the case of
"Umesh Kumar Nagpal Versus State of Haryana and
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others (1994)4 S.C. Cases (138)". The Apex Court held
that the object of compassionate appointment is to enable
the penurious family of the deceased employee to ride over
the sudden financial crisis and not to provide employment.
It was further hold that mere death of an employee does
not entitle his family to compassionate appointment, The
authority concerned must consider as to whether the
family of the deceased employee is unable to meet the
financial crisis resulting from the employee's death. The
offering compassionate appointments as a matter of
course irrespective of the financial condition of the family
of the deceased and making compassionate appointment in
posts above Class-III and IV, is legally impermissible. The
compassionate appointments cannot be granted after a
lapse of reasonable period, which must be specified in the
rules. The consideration for such employment is not a
vested right which can be exercised at any time in further.
The object being to enable the family to get over the
financial crisis which is faces at the time of death of the
sole bread-winner, the compassionate employment cannot
be claimed and offered whatever the lapse of time and
after the crisis is over.
It has been considered appropriate that there is need to
review the whole policy on compassionate appointments
by taking a clue from the policy of Government of India
and to impose strict conditions so that compassionate
appointment are available only to very deserving cases.
Most of the vacancies that are available or accrue in
direct quota posts in various departments are consumed
by these compassionate appointments considerably
reducing vacancies for carrying out recruitments from the
open market. This has a direct reflection on the efficiency
and working of the departments as is restricts the
Government for making selections from a wider choice of
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candidates. Imposition of a cup on compassionate
appointment will also protect the legitimate right of young
qualified persons who are waiting for their turn for being
recruited in various departments of the Government for
years.
2. The State Government has decided to review the policy
on compassionate grounds strictly, on the decision of the
Hon'ble Supreme Court of India, in the case of "Umesh
Kumar Nagpal Versus State of Haryana", referred as
above, The Government has reconsidered all the earlier
instructions issued from time to time on compassionate
appointments and has decided to review of policy to
provide the benefit only to deserving candidates as per
directions of the Apex Court referred in Para-1 above.
I henceforth, the objective of the Scheme is limited to grant
of appointment on compassionate grounds to persons who
fall in the categories mentioned below:
(1) x x x
(2) A dependent member of the family of the deceased
Government employee, who dies in harness
x x x x
6. ELIGIBILITY
(a) The family is indigent and deserves immediate
assistance for relief from financial destitution. The
authority concerned must consider as to whether the
family of deceased employee is unable to meet the
financial crisis resulting from employee's death.
(b) Applicant for compassionate appointment should be
eligible and suitable for the post in all respect under the
provision of the relevant Recruitment Rules.
x x x x
8. RELAXATIONS
(a) Upper age limit could be relaxed wherever found to be
necessary. In case of reserved categories of SC/BC,
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widows the age relaxation may be allowed as per policy
instructions issued from time to time. The lower age limit
should, however, in no case be relaxed below 18 years of
age in case of Group "C" and below 16 years in case of
Group "D". However, the Administrative Department may
relax upper age limit by 5 years in deserving cases.
NOTE Age eligibility shall be determined with reference to
the date of application and not the date of appointment.;
(b) No relaxation in educational qualification is
permissible. However, for Group "D" minimum 5th
standard is necessary. For Group "C" the appointing
authority may temporarily relax the conditions for the
passing of Punjabi Language for a period of six months.
The persons so appointed shall have to pass an
examination of Punjabi Language equivalent to
Matriculation standard of he/she has to qualify a test
concerned by the Language Wing of the Department of
Education, Punjabi within prescribed period, If he she
fails to qualify the test, he/she may be dealt with like other
employee as per rules.
x x x x
13. PROCEDURE
(a) The proforma as in Annexure-1 may be used by
Department offices for ascertaining along with the
document as given in Annexure-II, and submitted to the
Appointing Authority within a period of 6 months from the
date of death or disability of a person/employee as the
case may be. Appointment must be made within a period of
one year within the Department and 2 years in other
departments through Re-deployment Cell. Genuine belated
requests with cogent reason for compassionate
appointment can be entertained only within a period of 5
years from the date of death or disability of the employee
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person with the special approval of the Personnel
Department and Finance Department."
6. Learned counsel for the petitioner further submitted that
proviso to para 13(a) of the abovesaid policy has been added by the
State of Punjab vide letter dated 03.07.2008, which reads as under: -
"Provided that in the case where the deceased
Government employee leaves behind his/her minor
children, who are studying at the time of death of the
employee and are not qualified for an employment in the
Government and the spouse is not in a position to join the
Government job, a dependent child may be allowed to
apply for compassionate appointment by the Competent
Authority, within a period of one year from the date of
attaining the age of majority and educational qualification
for a Group-"C" or "D" appointment in Government.
2. On humanitarian considerations, it has also been
decided as a special one time measure to extend this
benefits to all old deserving cases. In such cases, an
application for employment may be made within six
months from the date of issue of these instructions. If not
already made. The Administrative Department should
complete the process of giving employment with a period
of nine months from the date of issuance of these
instructions. No further relaxation shall be allowed under
any circumstances."
7. On the strength of above proviso, learned counsel
submitted that the case of the petitioner has wrongly been rejected by
respondent No.2.
8. On the other hand, learned State counsel has submitted
that the petitioner has no absolute right for appointment on
compassionate basis. His case has rightly been rejected by respondent
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No.2 as firstly his application cannot be entertained beyond the period
of five years from the date of death of his father and secondly he had
not passed the Punjabi language examination upto 5th standard. He
further submitted that even the proviso added vide letter dated
03.07.2008 below para 13(a) does not advance the case of the
petitioner. He, therefore, submitted that the impugned order is
perfectly legal and valid and does not require any interference by this
Court under Article 226 of the Constitution of India.
9. I have heard learned counsel for the parties and perused
the record.
10. The facts are not in dispute that father of the petitioner
died on 31.12.2001 while in service and the wife of the deceased
employee (mother of the petitioner) moved first application for
compassionate appointment on 18.01.2002, which was duly replied by
respondent No.2 vide letter dated 16.04.2002.
11. Thereafter, on 19.04.2002 mother of the petitioner moved
another application stating that she has not done any studies in Punjabi
subject till date but she will pass 5th standard Punjabi examination very
soon, which was duly replied by respondent No.2 vide letter dated
15.07.2002 as under: -
"Reference your request for appointment to Class-IV post
in this Forum on compassionate ground consequent upon
the death of your husband Sh. Jagdish Singh Negi, who
was an employee of this Forum.
This is to inform you that as per qualifications laid down
by the State Govt. A person having passed 5th standard
(with Punjabi as subject) is alone entitled to appointment
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to Class-IV post on compassionate ground. Though as per
certificate submitted by you. You have passed 5th standard
examination from the Primary School, Oring. You have
not studied Punjabi upto 5th standard. Even in the writing
submitted by you, it was mentioned that you have not
passed any examination in Punjabi Language, You are
than not eligible for appointment to Class-IV post in this
Forum on compassionate ground, your request for
appointment to Class IV post on compassionate ground
would be considered as and when you submit necessary
proof of having passed the 5th standard examination in
Punjabi.
This is for your information please.
Sd/- (In English)
President,
Distt. Consumer Disputes
Redressal Forum,
Nawanshahr"
12. Thereafter, mother of the petitioner moved application
dated 28.05.2003 and submitted that she has now passed 5th grade,
including Punjabi subject, so her case for compassionate appointment
may be considered, which was filed by respondent No.2 as there was
no vacancy of Class-IV with respondent No.2 at that point of time.
13. It is the case of the petitioner that he attained the age of
majority of 18 years on 25.04.2019 and on passing matriculation
examination, he submitted application dated 10.05.2020 seeking
appointment on compassionate basis which has been rejected by
respondent No.2 vide order dated 15.07.2020 on the ground that he has
not passed the Punjabi language examination upto 5th standard, which is
required for appointment as peon and secondly that as per guidelines an
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application for compassionate appointment beyond five years cannot be
entertained as father of the petitioner died on 31.12.2001.
14. From the perusal of the Policy reproduced above, it is
clear that firstly relaxation in qualification is not permissible and,
therefore, case of the petitioner has rightly been rejected by respondent
No.2. Secondly, so far as proviso added below para 13(a) of the Policy
is concerned, a bare perusal of the same would show that the object of
adding the said proviso is that where the deceased Government
employee leaves behind his/her minor children, who are studying at the
time of death of the employee and are not qualified for an employment
and the spouse is not in a position to join the Government job, a
dependent child may be allowed to apply for compassionate
appointment by the competent authority within a period of one year
from the date of attaining the age of majority and educational
qualification for Group 'C' and 'D' appointment. The said proviso
would not be applicable in the present case as the petitioner was of the
age of eight months only when his father died on 31.12.2001 and the
said proviso is beneficial only to those minor children who were
studying at the time of death of the employee.
15. The Hon'ble Supreme Court in The Chief Commissioner,
Central Excise and Customs, Lucknow and others v. Prabhat Singh,
2013(2) S.C.T. 58 while considering the similar issue has held as
under: -
"13. Most importantly, the High Court did not take into
consideration one of the most significant reasons depicted
in the orders passed by the appellants (dated 5.1.2006 and
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22.5.2008), namely, that under the OM dated 5.5.2003
appointment on compassionate ground was permissible
within a period of three years from the date of death of the
concerned employee in harness. Vijay Bahadur Singh, the
father of Prabhat Singh had died on 2.3.1996. The
candidature of Prabhat Singh, for appointment on
compassionate ground, under the OM dated 5.5.2003
could have been considered only till 1.3.1999. Thereafter,
Prabhat Singh was rendered ineligible for appointment on
compassionate ground. Pointedly, on aforesaid ground the
Review Committee constituted by the appellants to
consider the claims of dependents of employees who had
died in harness, vide an order dated 21.9.2007, had
excluded the names of persons including Prabhat Singh,
from the list of pending cases for appointment on
compassionate ground, because they could no longer be
appointed on compassionate ground, since more than
three years had expired after the death of the concerned
bread winner in harness. Had the High Court or the
Tribunals applied their mind to the aforesaid pre-
condition for eligibility for appointment on compassionate
ground, none of the directions issued by the High Court or
the Tribunals would have been issued. Such directions
could have been issued only when the party approaching
the Tribunal or the High Court had established a prima
facie case, by demonstrating fulfillment of the terms and
conditions stipulated in rules/regulations/policy
instructions/office memoranda, relevant for such
consideration. Had the aforesaid simple exercise been
carried out, it would not have been necessary to examine
the matter again and again. In the instant case, on a
simple issue of compassionate appointment, there have
been repeated rounds of litigation, the first time before the
CAT-Allahabad Bench, then before the CAT-Lucknow
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Bench, and thereafter, before the High Court. From the
High Court the matter has now been carried to this Court.
If only the pre-requisite eligibility of Prabhat Singh for
appointment on compassionate ground had been
examined, it would not have been necessary to examine
the matter again, and yet again. The instant observations
have been recorded only to demonstrate how judicial time
at different levels has been wasted by entertaining a
frivolous litigation. Surely, because Prabhat Singh had
approached a judicial forum nine years after the death of
his father, whereas, appointment on compassionate
ground is permissible only within three years of the death
of the bread winner, the matter deserved to have been
rejected at the stage of first entertainment.
14. We are constrained to record that even compassionate
appointments are regulated by norms. Where such norms
have been laid down, the same have to be strictly followed.
Where claims for appointment on compassionate ground,
exceed, the available vacancies (which can be filled up by
way of compassionate appointment), a selection process
has to be adopted by the competent authority. The said
process, necessarily has to be fair, and based on a
comparative compassion gradient of eligible candidates,
or on some such like criterion having a nexus to the object
sought to be achieved. In other words, where there are two
candidates but only one vacancy is available, there should
be a clear, transparent and objective criterion to
determine which of the two should be chosen. In the
absence of a prescribed criteria, a fair selection process
has to be followed, so that, the exercise carried out in
choosing one of the two candidates against a solitary
available vacancy, can be shown to be based on reason,
fair-play and non arbitrariness.
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15. The very object of making provision for appointment
on compassionate ground, is to provide succor to a family
dependent on a Government employee, who has
unfortunately died in harness. On such death, the family
suddenly finds itself in dire straits, on account of the
absence of its sole bread winner. Delay in seeking such a
claim, is an ante thesis, for the purpose for which
compassionate appointment was conceived. Delay in
raising such a claim, is contradictory to the object sought
to be achieved. The instant controversy reveals that even
though Vijay Bahadur Singh, the father of the applicant
(Prabhat Singh) seeking appointment on compassionate
ground had died on 2.3.1996, Prabhat Singh sought
judicial redress, for the first time, by approaching the
CAT-Allahabad Bench in 2005. By such time, there was no
surviving right for appointment on compassionate ground
under the OM dated 5.5.2003. As already noticed above,
appointment on compassionate ground under the OM
dated 5.5.2003 is permissible within three years of the
death of the bread winner in harness. By now, sixteen
years have passed by, and as such, there can be no
surviving claim for compassionate appointment.
16. Courts and Tribunals should not fall prey to any
sympathy syndrome, so as to issue directions for
compassionate appointments, without reference to the
prescribed norms. Courts are not supposed to carry Santa
Claus's big bag on Christmas eve, to disburse the gift of
compassionate appointment, to all those who seek a
court's intervention. Courts and Tribunals must
understand, that every such act of sympathy, compassion
and discretion, wherein directions are issued for
appointment on compassionate ground, could deprive a
really needy family requiring financial support, and
thereby, push into penury a truly indigent, destitute and
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impoverish family. Discretion is therefore ruled out. So
are, misplaced sympathy and compassion."
16. Further the Hon'ble Supreme Court in Jagdish Prasad v.
State of Bihar, 1996 (1) SCC 301 has held as under: -
"......The very 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. Since the death occurred way back in 1971, in
which year, the appellant was four years old, it cannot be
said that he is entitled to be appointed after he attained
majority long thereafter. In other words, if that contention
is accepted, it amounts to another mode of recruitment of
the dependent of a deceased Government servant which
cannot be encouraged, de hors the recruitment rules."
17. A Division Bench of this Court Bijender Singh v. State of
Haryana, 1999(3) SCT 98 has held as under: -
"One of the principles which is clearly discernible from
the various judicial precedents referred to above, is that
the minor dependent of deceased employee cannot claim
appointment as of right on his/her attaining majority
unless the rules or the administrative instructions which
regulate ex gratia employment/compassionate
appointment provide for consideration of the claim of such
dependent after he/she becomes major, the Court cannot
issue a writ in the nature of mandamus directing the
public employer to appoint such dependent after lapse of
many years. It is also consistent view of the Courts that
long time gap between the date of the death of the
employee and the date of submission of application by an
eligible dependent is sufficient to draw an inference that
the family of the deceased was not in dire need of
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assistance in the form of ex-gratia
employment/compassionate appointment."
18. This Court in Tinku v. State of Haryana and others,
2021(6) SLR 811 has held as under: -
"8. It is well settled that appointment to public office is
required to be made by strictly adhering to the mandatory
requirement of the Constitution. Compassionate
appointment is an exception to the general rule. Provision
has been made in order to help the bereaving family
immediately, who has lost its bread earner, to tide over the
immediate crisis. Compassionate appointment is not a
right but a concession. A government/public employment
is not a hereditary office. Such provision has been made
to provide immediate succor to the dependents of the
deceased. Moreover, it is also well settled that the
compassionate appointment cannot be claimed as a matter
of right especially after a passage of time. Reference in
this regard can be made to the judgment of the Supreme
Court in Umesh Kumar Nagpal v. State of Haryana
(1994) 4 SCC 138.
19. Keeping in view the aforesaid, the petitioner is not entitled
for appointment on compassionate basis after about 22 years from the
date of death of his father on 31.12.2001 when he was eight months old
and is now over 22 years of age. The position of law is settled that
appointment on compassionate basis is not an alternate source of
recruitment. Nor does the consideration for such employment is a
vested right, which can be exercised at any time in future.
20. No other point has been urged.
21. In the wake of the position, as narrated above, the
impugned order is perfectly legal and valid and does not require any
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interference by this Court. Consequently, the present writ petition is
dismissed with no order as to costs.
(NAMIT KUMAR)
29.01.2024 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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