Manohar Kumar vs The State Of Bihar & Ors.

(i)

For issuance of an appropriate writ, order or direction in the nature of certiorari for quashing the impugned letter/order bearing memo no. 805 dated 25.03 2023, issued under the signature of the Commandant, Bihar Special Armed Police-07, Katihar, whereby the application of the petitioner for compassionate appointment against the post held by his late father has been arbitrarily and illegally rejected.

(ii)

For issuance of an appropriate writ, order or direction in the nature of mandamus commanding the respondents to appoint the petitioner on compassionate ground, on a suitable Class-III/Class-IV post (including the post of Cook/Rasoiya held by his late father) in the Bihar Special Armed Police, earlier known as "Bihar Military Police" in place of his late father Dilip Mandal, who died-in-harness, within a time-bound period, with all consequential benefits.

BRIEF FACTS OF THE CASE

SUBMISSION ON BEHALF OF THE PETITIONER

“14.

The respondent's father was serving as a loading helper He died in the year 1995 At the relevant time, the widow of the deceased employee mother of the respondent was serving in the Kerala State Health Services Department and, therefore, as such was not eligible and/or entitled for appointment on compassionate ground. After a period of approximately 14 years, the respondent being a daughter of the deceased employee submitted an application for appointment on compassionate ground, which has been rejected by the appellants At this stage, it is required to be noted that in the meantime, the respondent got married in the year 2013 It is also required to be noted that by the time, the learned Single Judge passed the order, which has been confirmed by the Division Bench, more than 24 years have passed after the death of the deceased employee. In light of the aforesaid facts and circumstances, it is required to be considered whether still the respondent shall be entitled to appointment on compassionate ground on the death of her father, who died in the year 1995?”

“6.

It cannot be denied that the object behind the circular of the Personnel and Administrative Reforms Department was to liberalise the process of appointment on compassionate grounds (Anukampa) so that the person concerned might be granted immediate benefit. Such persons are to be saved from the critical condition of life on account of economic backwardness and it is only with a view to save such person from starvation that the person concerned is given appointment on compassionate ground. Of course, the period of two years was fixed for presenting such an application and in this case within two years of the death of his father the petitioner did file such an application. But then, it was rejected because, on the date of presenting the application, he was under age being 17 years old and did not fulfil the prescribed age of 18 years. He became the victim of such circumstances. When he filed the application within two years of the death of his father, he was under age and when he presented the application fulfilling the condition of 18 years it was turned down on the ground that it was beyond the period of two years. The situation was beyond the control of the petitioner. But, one has to keep in mind the dominant object behind such circulars which were issued from time to time to facilitate and to benefit such person in destitute any technical approach would defeat the very object behind such appointments on compassionate grounds. Of course, such application must be made bona fide and within a period of two years, but, in a fit and proper case, relaxation in age has to be suitably considered and the age can be relaxed in order to achieve the very purpose of granting such benefit of service on compassionate ground.”

“9.

The application for appointment by the petitioner whose father died in harness was first made on 18-3-1983, when he was aged seventeen years and few months. This was within two years of the death of his father, who died on 28-12-1981. The application was turned down because the petitioner did not attain the age of eighteen years, his date of birth being 10-2-1966. On 9-4-1985, vide Annexure-4, much within five years of the death of his father, he filed another application, which however, was rejected on 16-8-1986 on the ground that two years' limitation from the date of death having expired, the application for employment was not entertainable. Against the decision of the employer he filed a representation for review which was forwarded with a recommendation on 23-3-87, vide Annexure-7 by the District Superintendent of Education to the District Development Officer for re-consideration of the case of the petitioner. The said matter is still pending. This compelled the petitioner to file a complaint before the public complaint cell on 20-8-1987. The receipt of the complaint is Annexure-8. The petitioner thereafter filed this writ petition for failure of the respondents to dispose of the matter finally. In short, the matter with respect to his employment on compassionate ground remained pending before the authorities when on 25-5-1989 the State Government brought about the remedial amendment of the employment rule (Annexure-I to the supplementary affidavit filed on 21.3.1990), which provides that an application for employment on compassionate ground could be made upto five years of the death. On 9.4.1985 when the petitioner filed the second application he was above eighteen years.”

“7.

This question is already settled by now by various judgments of this Court. A Bench of this Court dealing with similar situation held in the case of Brajendra Prasad Poddar v. The State of Bihar [1990 (2) Patna Law Journal Reports 668.] , that cause of a dependent, whose father died-in-harness, should not be frustrated on technical grounds and keeping in view the benevolent legislation of the State Government, liberalised view should be taken for providing employment on compassionate ground. It is further held that the dependent on attaining the age of majority would be entitled to be considered even though he may be minor at the time of death of his father. The question of under-age would be no ground to take a decision to frustrate the cause. The facts of the case at hand is almost identical to that of Brajendra Prasad Poddar (supra).

8.

For the reasons aforementioned and in view of the legal proposition, as noticed above, the orders passed by the State authorities and also by the learned Single Judge, in our view, are not sustainable in law.

9.

This appeal is, accordingly, allowed, order impugned passed by the learned Single Judge is set aside and the State authorities are directed to consider the case of the appellant for his appointment on compassionate ground on the basis of his application dated 27.5.1998 in accordance with law. This exercise, however, must be completed within a period of six weeks from the date of receipt/production of a copy of this order. No order as to costs.”

SUBMISSIONS ON BEHALF OF THE RESPONDENTS

CONSIDERATION

“3.

the very object of appointment of a dependent of the deceased employee who die 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.”

“6.

For these very reasons, the compassionate employment cannot be granted after a lapse of a 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 future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.”

“11.

It has been said a number of times earlier but it needs to be recalled here that under the scheme of compassionate appointment, in case of an employee dying in harness one of his eligible dependants is given a job with the sole objective to provide immediate succour to the family which may suddenly find itself in dire straits as a result of the death of the breadwinner. An appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependants and the financial deprivation caused to the dependants as a result of his death, simply because the claimant happened to be one of the dependants of the deceased employee would be directly in conflict with Articles 14 and 16 of the Constitution and hence, quite bad and illegal. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind.”

“15.

While considering the issue involved in the present appeal, the law laid down death of the deceased employee are required to be referred to and considered In the recent decision, this Court in the Case of Director of Treasuries in Karnataka v. V Somyashree, 2021 SCC OnLine SC 704, had occasion to principle governing the grant of appointment on compassionate ground After referring to the decision of this Court in N.C. Santhosh v State of Karnataka, (2020) 7 SCC 617, this Court has summarised the principle governing the grant of appointment on compassionate ground as under:-

(i)

that the compassionate appointment is an exception to the general rule;

(ii)

that no aspirant has a right to compassionate appointment;

(iii)

the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;

(iv)

appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy;

(v)

the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.

“16.

As per the law laid down by this Court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Articles 14 and 16 of the Constitution However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. compassionate ground is a concession and not a right.”

“17.

In the case of State of Himachal Pradesh v Shashi Kumar reported in (2019) 3 SCC 653, this Court had an occasion to consider the object and purpose of appointment on compassionate ground and considered the decision of this Court in the case of Govind Prakash Verma v LIC, reported in (2005) 10 SCC 289, in paras 21 and 26, it is observed and held as under:-

"21.

The decision in Govind Prakash Verma Govind Prakash Verma LIC, (2005) 10 SCC 289, has been considered subsequently in several decisions But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal v State of Haryana [Umesh Kumar Nagpal State of Haryana, (1994) 4 SCC 138] The principles which have been laid down in Umesh Kumar Nagpal [Umesh Kumar Nagpal v State of Haryana, (1994) 4 SCC 138) have been subsequently followed in a consistent line of precedents in this Court These principles are encapsulated in the following extract (Umesh Kumar Nagpal case [Umesh Kumar Nagpal v State of Haryana (1994) 4 SCC 138), SCC pp 139-40, para 2)

"2.

… As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit No other mode of appointment nor any other consideration is permissible Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus 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 for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood The Government or the public 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 a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non -manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.”

26.

The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [(2008) 11 SCC 384] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v LIC, (2005) 10 SCC 289 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case.”

“18.

Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis The object is not to give such family a post much less a post held by the deceased.”

“19.

Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the respondent shall not be entitled to the appointment on compassionate ground on the death of her father, who died in the year 1995. After a period of 24 years from the death of the deceased employee the respondent shall not be entitled to the appointment on compassionate ground If such an appointment is made now and/or after a period of 14/24 years, the same shall be against the object and purpose for which the appointment on compassionate ground is provided.”