Rubi Kumari vs State Of Jharkhand And Others

Anubha Rawat Choudhary, J

Heard Mr. Pankaj Kumar Mishra, learned counsel appearing on behalf of the petitioner.

Learned counsel for the respondent A.C. to G.P. III is also present.

This writ petition has been filed for the following reliefs:

“For issuance of direction upon the respondents for quashing of the sub clause (iii) of the Clause 3 of the scheme of compassionate appointment notified vide letter dated 01.12.2015 (Annexure-5) by which appointment on the basis of compassionate ground in case of missing of the government employees has been rendered invalid, is ultra vires and against the object/purpose of the provision and also is against the law of land and principle of natural justice.”

Learned counsel for the petitioner submits that father of the petitioner got missing from 31.05.2001 and thereafter F.I.R. regarding ‘missing’ was also lodged on 09.06.2001. The petitioner filed the application for compassionate appointment and subsequently filed writ petition before this Court in W.P. (S) No. 1731 of 2017 which was dismissed by this Court vide order dated 03.08.2017 by referring to Sub Clause (iii) to clause 3 of the scheme of compassionate appointment notified by letter dated 01.12.2015. The said writ petition was dismissed on the ground that no direction can be issued to the respondents to grant compassionate appointment to the petitioner in view of the said clause. He submits that the present writ petition has been filed challenging the said clause. The learned counsel submits that the said clause is ultra vires and against the very principle of grant of compassionate appointment.

Learned counsel appearing on behalf of the respondent State on the other hand has opposed the prayer and submitted that the father of the petitioner had gone missing on 31.05.2001 but there is no declaration from the court of competent jurisdiction declaring the father of the petitioner presumed to have died. He also submits that it has been 20 years from the date the father of the petitioner has been missing and consequently no relief can be granted to the writ petitioner. Even the earlier writ petition was filed belated in the year 2017. Learned counsel submits that grant of compassionate appointment is a matter of policy and if a person is found missing then, he can be declared dead by competent court of civil jurisdiction only after expiry of 7 years from the date of missing and by this time the whole purpose of providing compassionate appointment would frustrate. There is no illegality in the impugned clause of notification dated 01.12.2015.

Findings

It is not in dispute from the side of the petitioner that the father of the petitioner got missing from 31.05.2001; F.I.R. regarding ‘missing’ was also lodged on 09.06.2001; no steps were taken for any declaration through civil court that the father of the petitioner is ‘dead’ and after lapse of about 16 years, writ petition for compassionate appointment was filed before this Court in W.P. (S) No. 1731 of 2017 which was dismissed by this Court vide order dated 03.08.2017 by referring to Sub Clause (iii) to clause 3 of the scheme of compassionate appointment notified by letter dated 01.12.2015 and thereafter the present writ petition has been filed challenging the aforesaid clause denying compassionate appointment to the dependents of a person who is absconding or missing.

This Court is of the considered view that the compassionate appointment is not a matter or right and it is governed by the policy of the employers. This Court also finds that the impugned clause 3(iii) of the scheme of compassionate appointment clearly debars compassionate appointment in lieu of person found ‘missing’. There is no doubt that in case of any missing employee, he cannot be taken as ‘dead’ unless he is declared dead by a competent court of civil jurisdiction. Merely because a person is ‘missing’, he cannot be said to be ‘dead’. There are timelines for the purposes of declaring a person dead by a competent court of civil jurisdiction.

Considering the fact that by the time, the person is declared dead by a competent court of civil jurisdiction, the very purpose of the compassionate appointment would frustrate and also that grant of compassionate appointment is essentially a matter of policy, this Court finds no illegality in Sub Clause (iii) of clause 3 of scheme of compassionate appointment notified by letter dated 01.12.2015 calling for any interference in writ jurisdiction. Accordingly, the present writ petition is hereby dismissed.

Pending I.A., if any, stands closed.