Bombay High Court
Satish @ Rajesh S/O Kanbarao Balkhande vs Union Of India on 7 May, 2010
Author: P.D. Kode
Bench: S.A. Bobde, P.D. Kode
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3479 OF 2001
Satish @ Rajesh s/o Kanbarao Balkhande,
Aged about 28 years,
Occupation - Nil,
R/o. Near Collector's House,
Civil Lines, Washim,
District - Washim
ig .. PETITIONER
.. Versus ..
1. Union of India, through Secretary,
Ministry of Railway, Rail Bhawan,
New Delhi.
2. Divisional Railway Manager,
Bhusawal Division,
Bhusawal.
3. Rail Superintendent, Bhusawal,
Railway Division, Bhusawal.
4. Senior Section Engineer (P. Way),
South Central Railway, Akot (M.G.)
District - Akola (M.S.) .. RESPONDENTS
Smt. S.W. Deshpande, Advocate for petitioner,
None appears for respondent no.1,
Shri R.G. Agrawal, Advocate for respondent nos. 2 to 4,
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CORAM : S.A. BOBDE AND P.D. KODE, JJ.
DATE OF RESERVING THE JUDGMENT : APRIL 6, 2010
DATE OF PRONOUNCING THE JUDGMENT : MAY 7, 2010
JUDGMENT (per : P.D. Kode, J.)
1. Rule. Returnable forthwith. Heard finally by consent of parties.
2. The petitioner, son of Late Kanba Dharba Balkhande working as a Watchman with the respondents and died on 22.3.1977 due to running over a passenger train while discharging his official duties, has prayed for issuing an appropriate writ/order/direction in nature of mandamus for appointing him on compassionate ground on the count of himself being eligible for such appointment after death of his father.
3. Mrs. Deshpande, learned counsel for the petitioner, urged that since the death of Kanba-father of the petitioner, none from the family has been appointed on compassionate ground by the respondents in spite of giving an assurance that any one person from the said ::: Downloaded on - 09/06/2013 15:56:37 ::: 3 family would be appointed accordingly. She urged that petitioner sole of the deceased was then only five years of old. She urged that mother of petitioner is suffering from paralysis since last three years prior to filing of petition and hence it has become necessary to appoint the petitioner on compassionate ground.
4. The learned counsel for the petitioner further urged that the mother of the petitioner vide applications dated 1.8.1977, 23.3.1979, 7.5.1979, 29.11.1979 had requested for employment on compassionate ground.
Ultimately by letter dated 29.10.1979 at Annexure-B respondent no.2 had informed her in response to her application dated 1.8.1977 that her name has been registered for such appointment and she would be appointed when her turn comes.
5. The learned counsel for the petitioner urged that ultimately by application dated 14.12.1992 at Annexure-C the mother of the petitioner requested respondent no.2 to appoint the petitioner in her place on compassionate ground and thus she had applied for such appointment after petitioner had attained age of 18 years.
::: Downloaded on - 09/06/2013 15:56:37 ::: 46. The learned counsel for the petitioner further urged that on 16.2.1999 mother of the petitioner had made representation as per Annexure-D for the appointment of the petitioner. She urged that on 2.4.1999 petitioner also made representation as per Annexure-E to respondent no.
2 for appointing him on compassionate ground stating that he was a very poor person and when he was of age 5½ years, his father had died while in the service of the respondents and as he is duly qualified, he is entitled for appointment in the office of the respondent no.2.
7. The learned counsel for the petitioner further urged that even thereafter respondents having not responded, the petitioner has approached this Court. She urged that the petitioner had passed 10th class examination in March 1990 with 53% of marks, 12th class examination in December, 1995 and typing examination with speed of 30 words per minute. and Annexures-H, F & I are respectively certificates to such effect given by the concerned authorities and Annexure-G is the certificate issued by Deputy Director of Social Welfare of petitioner belonging to the Buddhist faith.
::: Downloaded on - 09/06/2013 15:56:37 ::: 58. The learned counsel for respondent nos.2 to 4 countered the submissions by stating that no case has been made by the petitioner for appointing him on compassionate ground. He urged that after the death of the father of the petitioner, his mother Gayabai was appointed as a substitute from 19.5.1978 and though the record regarding the said service is not available the same is evident from the letter dt. 20.7.1999 given by the mother of the petitioner. He urged that Gayabai had resigned from the said service due to domestic reasons on 18.11.1979. He urged that during the investigation of the request of Gayabai vide letter dt. 20.7.1999 for appointing petitioner in her place, the said facets were revealed. He urged that since as per the Railway Board letter dt.
7.4.1983 filed as Annexure-R-II only one person can be appointed on compassionate ground and such appointment being already made in a case of deceased Kanba Balkhande, the request for appointment of petitioner could not be accepted. He urged accordingly mother of petitioner was informed by the respondent no.2 vide letter dt. 6.12.2003 filed as Annexure-R-V. ::: Downloaded on - 09/06/2013 15:56:37 ::: 6
9. The learned counsel for respondent nos.2 to 4 thus contended that in said state of affairs there is no substance in the petition which has been filed after 20 years. He urged that the birth date of petitioner being 24.9.1972 he ought to have made an application after attaining the age of 18 years i.e. in the year 1991. He urged that the application dt.14.12.1992 being made by mother of petitioner the same could not be considered apart from the fact that one person from the family of deceased had already been appointed upon compassionate ground and had resigned from service. He urged thus there was no substance in belated application and/or representation made by mother of petitioner and so also by the petitioner. The learned counsel further contended that thus petitioner had failed to make out any case for the appointment as prayed and petition made is liable to be dismissed with costs as the material fact of mother of petitioner being given service and having resigned is suppressed therein.
10. We have heard the learned counsel for the parties and perused the record and the decisions relied.
Since the aforesaid petition pertains to the question of an ::: Downloaded on - 09/06/2013 15:56:37 ::: 7 appointment on compassionate ground, it will be advantageous to bear in the mind the law regarding the same explains by the Hon'ble Apex Court in a case of Santosh Kumar Dubey (supra) pointed by learned counsel for the petitioners wherein the Apex Court in relation with such appointment has observed in paragraph no.11 to 13 to the following effect :
"11. 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.
12. 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.
13. 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 overcome the financial difficulties that they faced on missing of the earning member. That being the position, in our considered opinion, this is ::: Downloaded on - 09/06/2013 15:56:37 ::: 8 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." (emphasis supplied by this Court)
11. Similarly in a case of V. Sivamurthy (supra) pointed by learned counsel for the petitioners, the Apex Court while considering constitutionality and validity of appointments made on compassionate ground observed in paragraph nos.9 and 10 :
"9. Article 16 of the Constitution bars discrimination in employment on the ground only of descent. If the service rules or any scheme of the Government provides that whenever a government servant retires from service, one of his dependants should be given employment in his place, or provides that the children of government servants will have preference in employment, that would squarely fly in the face of prohibition on the ground of descent. Employment should not be hereditary or by succession. But where the policy provides for compassionate appointment in the case of an employee who dies in harness or an employee who is medically invalidated, such a provision is based on a classification which is not only on the ground of descent : that is death of the employee in harness, or medical invalidation of the employee while in service.::: Downloaded on - 09/06/2013 15:56:37 ::: 9
10. This Court had occasion to consider the difference between conferment of a preferential right to appointment to a family member of a government servant, merely on the ground that he happens to be a family member, and schemes relating to compassionate appointment of the dependant family members of government servants who die while in service or who are incapacitated while in service."
12. In the said case after making such observation and after considering number of decisions delivered by the Apex Court pertaining to such appointments, the Apex Court in paragraph no.18 summarised principles relating to compassionate appointments as under :
(a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are a well-recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies.
(b) Two well-recognised contingencies which are carved out as exceptions to the general rule are :
(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service.::: Downloaded on - 09/06/2013 15:56:37 ::: 10
(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner.
Another contingency, though less recognised, is where landholders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project-affected persons. (Particularly where the law under which the acquisition is made does not provide for market value and solatium, as compensation).
(c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies.
(d) Compassionate appointments are permissible only in the case of a dependant member of the family of the employee concerned, that is, spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, Classes III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts.
(emphasis supplied by us)
13. Having regard to aforesaid it will be necessary to take into consideration the service rules/schemes governing the appointment upon the compassionate ground in the services with railways with whom the deceased Kanba was working and had met accidental ::: Downloaded on - 09/06/2013 15:56:37 ::: 11 death. In the said context the reference to Annexure-R-II produced on behalf of respondent nos.2 to 4 i.e. the letter dt. 7.4.1983 reveals the consolidated instructions received regarding appointment on compassionate grounds from time to time. The relevant instructions contained at head III and IX therein are as under :
"III. Time limit for making
compassionate appointments :
Normally all appointments on
compassionate grounds should be made within a period of 5 years from the date of occurrence of the event entitling the eligible person to be appointed on this ground. This period of 5 years may be relaxed (where, for example, the widow cannot take up employment and the sons/daughters are minor) with the approval of the General Manager in the deserving cases while appointments are sought on the ground of an employee in his life or getting crippled in the course of duty. In cases relaxation of the 5 year limit will require the approval of the Ministry of Railways for which purpose the reference giving special reasons for the proposed relaxation should be made with the personal recommendation of the General Manager based on the special circumstances obtaining individual cases.
IX. General :
When offering appointment on compassionate grounds to a widow, son, daughter, etc. it need not be checked up whether another son/daughter is already working; by in no case there be more than one appointment against one death/medical incapacition. For example, it should not be permitted where the family wants ::: Downloaded on - 09/06/2013 15:56:37 ::: 12 another son or daughter to be employed in lieu or in addition to an appointment already made on compassionate grounds.
Once an appointment on compassionate grounds of the ward/widow etc., has been made in particular category, no change of category is subsequently permissible.
(emphasis supplied by us)
14. Now considering the law regarding appointment on compassionate ground as explained by the Apex Court as recited earlier and after taking into consideration the Service Rules pertaining to such appointment framed by Railways, we find substance in the submissions of learned counsel for respondent nos.2 to 4 that the petitioner has failed to make out a case for such appointment.
Particularly since the deceased has succumbed to death on 22.3.1977 and petitioner who was then minor had not made any application within the stipulated period i.e. after attaining the age of majority in the year 1991 as pointed out by learned counsel for respondent nos.2 to 4. In the same context making of an application dated 14.12,1992 by mother of petitioner would be wholly inconsequential as rightly pointed out by the learned counsel as by then her son has already become major.
::: Downloaded on - 09/06/2013 15:56:37 ::: 1315. Furthermore mother of petitioner had already way back had made an application for such appointment and she was appointed as a substitute from 19.5.1978 but had resigned from the said service. All the said events makes it abundantly clear that as per the rules regarding appointment on compassionate ground was duly made by the respondents for one category of the persons entitled for such appointment from family members of the deceased. Having regard to the same it is difficult to find that any further appointment can be made in violation of the instructions at head IX recited hereinabove. Thus subsequent change being not permissible under the rules prevailing it is difficult to find any substance in belated application made by the petitioner.
16. It is true that due to the passage of time record being not available the respondent nos.2 to 4 has not produced record regarding such an appointment of mother of petitioner made. However, the same appears to be insignificant as the application dt. 20.7.1999 made by the mother of petitioner clearly establishes the facets of herself being appointed on compassionate ground and ::: Downloaded on - 09/06/2013 15:56:37 ::: 14 additionally herself having resigned the same due to the domestic reasons.
17. Though the learned counsel for the petitioner has tried to urge that while resigning from the service given on compassionate ground to the mother of the petitioner, the respondents had agreed to give an appointment to her son i.e. the petitioner in her place, we do not find any merit in the said submission as the learned counsel was not able to point out any material in support of the said submission. Needless to add that pointing out an unilateral assertion of such assurance being given on the basis of the recital in the said application made by mother of petitioner cannot be said to be in the nature of an agreement to such effect being reached between the parties as tried to be canvassed. The falsity of the such a claim/assertion is also duly denoted by the fact of even such a claim being staked by the mother of the petitioner and so also by the petitioner in the year 1999 and not in 1990-91 i.e. immediately after petitioner attaining majority or soon thereafter.
::: Downloaded on - 09/06/2013 15:56:37 ::: 1518. In addition to the aforesaid the concept of giving an appointment to the family members of the deceased on compassionate ground being germane to the reasons of meeting the sudden crises occurring in the family on the count of death of breadwinner and the same being impermissible to be converted as an another source of recruitment or as a bonanza for receiving service in the instant case death having occurred in the year 1997 appointment of mother of petitioner being made immediately thereafter, herself having resigned the said service and the petitioner having staked a claim after 20 years also does not denote that appointment being sought for overcoming any crises occurred due to the death of employee.
19. For the reasons stated hereinabove, we find no merits in the present petition and dismissed the same.
Rule stands discharged.
JUDGE JUDGE
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