Mukund Yadav v. The State Govt. Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (S) No. 1754 of 2011 Mukund Yadav, aged about 35 years, son of Shri Kanhai Yadav, resident of Village Kaudavand Police Station Nagar Nar, Tahsil Bakavand, District Bastar (CG).

---- Petitioner

Versus

1. The State of Chhattisgarh through the Secretary, Public Health Engineering Department, Ministry, DKS Bhawan, Raipur (CG).

2. Superintending Engineer, Public Health Engineering Department, Jagdalpur Division, Jagdalpur (CG).

3. Executive Engineer, Public Health Engineering Division, Jagdalpur (CG).

---- Respondents For Petitioner Shri Vimal Tondey, Advocate.

For Respondents/State Shri Prafull Bharat, Additional Advocate General. Hon'ble Shri Justice P. Sam Koshy Order On Board 18/12/2015

1. The petitioner through the present petition is challenging the order dated 16.02.2010 (Annexure P/1) whereby the claim of the petitioner for compassionate appointment has been returned back by the concerned authority.

2. According to the Petitioner, while working with the Respondents as a Pump Operator, his father died in harness on 02.08.2001. Immediately

after which, the petitioner moved an application for compassionate appointment but the same was not considered by the respondent authorities and subsequently now by impugned order dated 16.02.2010 his claim has been returned back on the ground that the mark-sheet for Class-5 has been submitted at a much belated stage which ought to have been submitted along with the application for compassionate appointment itself. Counsel for the petitioner further submits that returning of his application amounts to rejection of his claim application.

3. Learned counsel for the State opposing the petition submits that on the date when the petitioner had moved an application for compassionate appointment, he was not having the minimum qualification required i.e. Class-Vth Pass under the Rules of the State, and therefore, his claim was not considered at the relevant time. Subsequently in the year 2009 i.e. much after the death of his father, the petitioner submitted marksheet of having passed 5th standard which by itself would not have revived his claim application for compassionate appointment. It is further submitted that reliance of the petitioner upon a circular of the State issued on 10.06.

1994 (Annexure P/7) relaxing the minimum qualification prescribed for compassionate appointment would not be applicable in the instant case as the said circular had already been superseded by the State of Madhya Pradesh itself vide order dated 01.05.2000 (Annexure R/2 with the return of the State) and therefore, the benefit of the earlier circular dated 10.06.1994 cannot be given to the petitioner in the present case as this petition has been filed in the year, 2011 i.e. much after the repealing of the earlier circular dated 10.06.1994.

4. Counsel for the State/respondents also relied upon the scheme for compassionate appointment applicable on the date of death of the deceased employee wherein it has been categorically mentioned that the qualification as per service rules of the State Govt. would be applicable upon the candidates seeking for compassionate appointment and in the instant case since the petitioner do not have requisite qualification, his claim has rightly been returned back by the concerned authority.

5. Considering the rival contentions put-forth by the counsel for the parties and having perused the documents, it clearly reflects that on the date of death of the deceased employee, the petitioner was only possessing qualification of Class-III as is reflected from the pleadings and as such the petitioner on the date of his claim application was not having minimum requisite qualification for appointment to the government employment. Therefore, the case of the petitioner could not have been considered by the respondent authorities. It is further reflected that though the petitioner moved the application for compassionate appointment in the year 2001 itself, but till 2011, he did not raise any objection or for that matter filed a petition and that it is only after about 10 years time when he has filed the present petition seeking compassionate appointment.

6. The Supreme Court in case of State of Gujarat and Others Vs. Arvindkumar T.Tiwari & Another (2012 (9)SCC 545) has held as under : "8. It is a settled legal proposition that compassionate appointment cannot be claimed as a matter of right. It is not simply another method of recruitment. As claim to be appointed on such a ground, has to be considered in accordance with the rules, regulations or administrative

instructions governing the subject, taking into consideration the financial condition of the family of the deceased. ...............however, before a candidate is considered for a post or even for admission to the institution, he must fulfill the eligibility criteria."

7. The same view has further been re-iterated by the Supreme Court in case of State of Uttar Pradesh and Others Vs. Pankaj Kumar Vishnoi (2013(11)SCC 178).

8. The law with regard to compassionate appointment stands well settled and judicial precedents on the principles abound. Nonetheless, claims without any substance or merit continue to be made, fall in the category of clear frivolous litigation burdening the Courts unnecessarily. The present is a classic case of a completely frivolous litigation for a claim regarding compassionate appointment seeking ways and means to find a Government job with the least effort through litigation rather than to compete for obtaining a secure employment in a competitive world.

9. Essentially, the petitioner seeks a back door appointment without having to face competition and doggedly pursues his claim for compassionate appointment notwithstanding the fact that it has no merit at all.

10. A claim for compassionate appointment is an exception to the constitutional mandate under Article 14 of the Constitution that all appointments in the Government or Semi-Government organizations must be made by open advertisement and competitive merit selection so as to provide equal opportunity to be considered to all who may be eligible, as employment in the Government constitutes a national wealth. A limited exception has been made to this principle by providing for

compassionate appointment which is primarily aimed as a part of social constitutional philosophy of the Government to provide succor to the family of the deceased faced with sudden penury and destituteness due to untimely loss of the bread winner. It is therefore patent that there is always an urgency in a claim for compassionate appointment. If a claim is legitimately made within stipulated time and consideration is belated, different issues may arise for determination. Such is not the case presently.

11. It has repeatedly been held that compassionate appointment is not a constitutionally sanctioned mode of appointment in Government service. Any claim therefore has to be strictly in terms of the policy or circulars regulating the same. The Court cannot consider claims for compassionate appointment on the basis of sympathy.

12. In Haryana State Electricity Board and another vs. Hakim Singh1 the Supreme Court held that "the whole object of any compassionate appointment schemes is to give succor to the family to tide over the sudden financial crisis befallen the dependents on account of the untimely demise of its sole earning members." 13.The Supreme Court in State of J & K and others Vs. Sajad Ahmed Mir2, in para 11 has held as under:

"11.......it is that such an appointment is an exception to the general rule. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and complete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should not be departed from except where compelling circumstances demand, such as, death of the sole bread winner, the family survived and the family suffering because (1997) 8 SCC 85 2006 (5) SCC 766

of the setback. Once it is proved that inspite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say "goodbye" to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution."

14. The Supreme Court in a recent decision reported in (2012)13 SCC 412 (Chief Commissioner, Central Excise and Customs, Lucknow and other v. Prabhat Singh) reiterating the above given legal positions in paragraph-18 has held as under:

"18. The very object of making provision for appointment on compassionate grounds, is to provide succour 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 breadwinner. Delay in seeking such a claim is an antithesis for the purpose for which compassionate appointment was conceived. Delay in raising such a claim is contradictory to the object sought to be achieved."

15. Further in Paragraph-19 also the Supreme Court in very categorical terms while restricting the scope of interference in a petition for compassionate appointment has held as under:

"19.The 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. The 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. The courts and tribunals must understand that every such act of sympathy, compassion and discretion wherein directions are issued for appointment on compassionate grounds could deprive a really needy family requiring financial support, and thereby, push into penury a truly indigent, destitute and impoverished family. Discretion is therefore ruled out. So are misplaced sympathy and compassion."

16. Considering the total facts and circumstances of the case and applying the above well settled principle of law to the facts of the case, this court is of the opinion that no good case is made out for interfering with the

petition for grant of compassionate appointment to the petitioner at such a belated stage.

17. As a result, the writ petition, being bereft of merit, is liable to be and is hereby dismissed. No order asto costs.

Sd/- (P.Sam Koshy) JUDGE inder