Compassionate appointment;delay and laches

THE LEGAL, ECONOMIC AND SOCIAL DOCTRINE OF WORKING CLASS JURISPRUDENCE : COMPASSIONATE APPOINTMENT, DELAY AND LACHES, POWER OF JUDICIAL REVIEW AND LEGAL PERSPECTIVE : A CONTEMPORARY JUDICIAL DICTUM : PART -I

ARUNDHATI SAMANTARAY,

PADMASHREE DR D Y PATIL COLLEGE OF LAW,

(MUMBAI UNIVERSITY)

PRELUDE : I have already penned two parts article on this subject. While searching the web this case caught my attention which is a judgment delivered by a learned Division Bench.I felt, it would be in fairness and fitness of the things to pen an article on this judgment.Hope, the esteemed readers would enjoy this small write-up.

      In this case, Central Coalfields Ltd (Piperwar Area, Ranchi District) preferred a Letters Patent Appeal bearing No.9 of 2017 in the Hon'ble High Court of Jharkhand at Ranchi against the judgment dated 21 October 2016 of a Learned Single Judge in Writ Petition No.6177 of 2010.The Learned single Judge directed Central Coalfields Ltd to consider the compassionate appointment of the Respondent. Aggrieved by the judgement of the learned Single Judge Central Coalfields Ltd preferred a Letters Patent Appeal before a learned Division Bench. Let us see as to how the LPA was dealt with.

THE CASE LAW :

CENTRAL COALFIELDS LTD

vrs

BINOD RAM TIRKEY

 [https://indiankanoon.org/doc/71546374]

DoJ : 5 SEPTEMBER 2017

FACTS OF THE CASE :

      The father of Shri Bond Ram Tirkey, an employee of Central Coalfields Ltd expired on 28th June 2002.The application for compassionate appointment was filed  by the petitioner (Respondent in LPA) on 17th February 2004. So admittedly, there was a delay of one and half months. In view of the same, the application for compassionate appointment was rejected by the employer.

WRIT PETITION TO THE HIGH COURT :

      Having felt aggrieved by the rejection of his application for compassionate appointment, Shri Binod Ram Tirkey moved the Hon'ble High Court of Jharkhand by filing a writ petition (civil) bearing no.6177 of 2010.On 21 October 2016, the Learned Single Judge, while disposing of the writ petition, directed as follows :

" Admittedly, It is a case of compassionate appointment and after going through the averments made in the writ petition and also going through the counter affidavit, it is crystal clear that there is delay of one and half months in filing representation for compassionate appointment and merely on technical ground, the claim of the petitioner has not been considered and rejected. The grounds for consideration and rejection of compassionate appointment are mentioned in N.C.W.A. In the present case, the claim of the petitioner has been rejected only on the ground of limitation of one and half months.

After going through the submissions made by the counsels and the materials available on record, I am of the considered view that it is a fit case for appointment on compassionate ground and the respondent authorities should consider the case for compassionate appointment keeping in view that the delay is of only one and half months.

In view of the above consideration, the impugned order dated 01.03.2011 (Annexure-8) is, hereby, quashed and the respondents authorities are directed to re-consider the case in view of the fact that delay was of only one and half months and it is a case of compassionate appointment.

Needless to say that all the exercises be completed within a period of four months and if the grievance of the petitioner is found to be genuine, the respondent-C.C.L. is directed to take a decision regarding the appointment of the petitioner on compassionate ground within a period of two weeks thereafter.

With the aforesaid observation, this writ petition stands disposed of ".

WRIT APPEAL TO THE HIGH COURT :

           Having felt aggrieved by the judgment and order of the learned Single Judge, Central Coalfields Ltd moved the learned Division Bench by filing an LPA bearing No.9 of 2017 .

         The Counsel for the Respondent submitted that at the highest there is only delay of one and half months and the learned Single Judge, in the judgment, has observed that there is delay of only one and half months in filing the representation and on this technical ground the claim of the respondent (original petitioner) cannot be rejected. It was also submitted by the counsel for the respondent that initially on 1st August 2003 information was given about death of the father of the respondent to the appellants (CCL).Thus, the aforesaid aspects (delay) of the matter were properly appreciated by the learned Single Judge.

APPRECIATION OF RIVAL CONTENTIONS :

      On appreciating the rival contentions, the learned Division Bench observed that the death of the father of the respondent had taken place on 28th June 2002. At the relevant time, the circular which was in force, is dated 1st January 2002.As per the said circular the time limit within which the application is to be preferred for getting compassionate appointment is one year.

       Thus, after the death of the father of the respondent which had taken place on 28th June 2002, the application should have been preferred within one year whereas, the respondent preferred the application for getting compassionate appointment on 17th February 2004 which is much beyond the period prescribed by the said circular.

      By another circular which was dated 19th June 2003, the period of limitation for preferring the application for compassionate appointment was extended to one and half years, but the same was applicable with effect from 17th November 2002 whereas the death of the father of the respondent had taken place on 28th June 2002 and hence the circular dated 19th June 2003 was not applicable in the facts of the present case.

      At the light of the above, the learned Division Bench stated that the learned Single Judge did not properly appreciate the matter while allowing the writ petition and wrongly calculated the period of limitation as one and half year. The learned Division Bench further observed that the learned concluded one and half months limitation after applying the proviso of circular dated 17th November 2002 to the present case which was not permissible in the eye of law.

ON POWER OF JUDICIAL REVIEW UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA :

      The learned Division Bench also stated even though circular dated 1st January 2002 was applicable which prescribed period of limitation of one year , the learned Single Judge had not only applied circular dated 19 June 2003 having an extended period of limitation of one and half years , but had also condoned the delay of one and half months. If such type of period more than what is prescribed by circular dated 1 January 2002 is allowed by the Courts while exercising power under Article 226 of the Constitution of India perhaps, there will be no limit of such type of charity being done by this Court. Tomorrow, another case may come for having two months delay; the same will have to be condoned by this Court because this Court has already condoned one and half months delay and so on and so forth. There is bound to be a cut off date as per policy of the appellant (CCL) which cannot be altered by the High Court. Whenever there is a cut off date prescribed by the policy floated by the "State" (here CCL) there are bound to be few persons, who will fill on the wrong side of the cut off date. Court cannot be more charitable than such type of circular. Charity beyond the circular is cruelty to others especially when compassionate appointment is not a matter right at all. Such types of compassionate appointments are exception to the constitutional provisions especially of Article 14 to be read with Article 16 of the Constitution of India. From this obiter dicta we derive three propositions as follows :

1.The power of Judicial Review under Article 226 is not illimitable and it has its inherent limitations.

2. Under power of Judicial Review, Courts cannot augment charity at the cost of the employer.

3. If Courts do more charity than what is prescribed under a scheme or policy, it would amount to cruelty to the employer.

REFERENCE TO SOME JUDICIAL PRONOUNCEMENTS :

(i) Umesh Kumar Nagpal vrs State of Harynana, 1994 (68) FLR 1191 : In this case, the Hon'ble Apex Court has ruled as follows :

"2.The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and met-it. No other mode of appointment nor any other consideration is 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 dependent 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.

3.Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible.

4.It is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even directed compassionate employment either as a matter of course or in posts above Classes III and TV. We are also dismayed to find that the decision of this Court in Sushma Gosain v. Union of India has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above Classes III and IV. In the present case, the High Court has rightly pointed out that the State Government's instructions in question did not justify compassionate employment in Class 11 posts. However, it appears from the judgment that the State Government had made at least one exception and provided compassionate employment in Class II post on the specious ground that the person concerned had technical qualifications such as M.B.B.S., B.E., B.Tech. etc. Such exception, as pointed out above, is illegal, since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the penurious condition of the deceased's family. Neither the qualifications of his dependent nor the post which he held is relevant. It is for this reason that we are unable to understand the following observations of the High Court in the impugned judgment:

"We are of the view that the extraordinary situations require extraordinary remedies and it is open to the Government in real hard cases to deviate from the letter and spirit of the instructions and to provide relief in cases where it is so warranted. To hold as a matter of law that the Government cannot deviate even minutely from the policy of providing appointment only against Class III and Class IV posts, would be to ignore the reality of life these days. It would be ridiculous to expect that a dependant of a deceased Class I Officer, should be offered appointment against a Class III or IV post. While we leave it to the Government to exercise its discretion judiciously in making appointments to Class I or 11 posts on compassionate grounds, yet a word of caution needs to be struck. It is to be noted that such appointments should be ordered in the rarest of rare cases, and in very exceptional circumstances. As a matter of fact, we would recommend that the Government should frame a policy even for such appointments."

5. It is obvious from the above observations that the High Court endorses the policy of the State Government to make compassionate appointment in posts equivalent to the posts held by the deceased employees and above Classes III and IV. It is unnecessary to reiterate that these observations are contrary to law. If the dependant of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity.

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."

(ii) Sanjay Kumar vrs State of Bihar, 2000 (87) FLR 132 : In this case, the Hon'ble Apex court has laid down the following principles which, in my opinion, are worth noting :        

" We are unable to agree with the submissions of the learned senior counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood. In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education & Anr. v. Pushpendra Kumar & Ors. supra. It is also Significant to notice that on the date when the first application was made by the petitioner on 2.6.88, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there is some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief."           

(iii) Santosh Kumar Dubey vrs State of Uttar Pradesh, JT2009(8)SC135 : In this case the father of the Appellant became untraceable and the Appellant applied for compassionate appointment after a very long time.The case ultimately reached the Hon'ble Supreme Court.The Hon'ble Apex Court ruled as follows :

" Admittedly, the father of the appellant was untraceable from 1981. Without entering into and deciding the issue as to whether employment on compassionate ground could be asked for in a case of deemed death under Section 108 of the Evidence Act, even if we assume for the sake of argument that it can be so demanded and asked for, such a right should and could have been exercised in the year 1988 and computing the period of five years therefrom the period of limitation for making an application for employment in the case of the appellant expired in the year, 1993.

 The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints.

The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in Government service.

In the present case, the father of the appellant became untraceable in the year 1981 and for about 18 years, the family could survive and successfully faced and overcame the financial difficulties that they faced on missing of the earning member. That being the position, in our considered opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions. The appeal, therefore, has no merit and is dismissed."

THE CONCLUSION :

      At the light of the foregoing discussions and the judciial pronouncements of the Hon'ble Apex Court, the learned Division Bench stated that no compassionate should have been awarded by the learned Single Judge by allowing the writ petition. The aforesaid principle announced by the Hon'ble Apex Court had not been properly appreciated by the learned Single Judge while allowing the writ petition.

THE VERDICT :

1.The judgment and order dated 21st October 2016 passed by the learned Single Judge was quashed and set aside.

2.The LPA filed by Central Coalfields was allowed.

3.The I A was accordingly disposed of.