Meghalaya High Court
Shri Dhaneswar Medhi vs . The Union Of India on 3 February, 2021
Equivalent citations: AIRONLINE 2021 MEG 2
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
Serial No. 02
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 222 of 2017
Date of Decision: 03.02.2021
Shri Dhaneswar Medhi Vs. The Union of India
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner(s) : Mr. P.K. Borah, Adv.
For the Respondent(s) : Dr. N. Mozika, ASG with
Mr. J.I. Nongrum, Adv.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
ORAL
1. The petitioner herein, has preferred this application before this Court on the grievance that his application for appointment on compassionate ground has not been duly considered and that he has been deprived of the same due to the arbitrary acts of the respondents.
2. Heard learned counsel for the parties.
3. Mr. P.K. Borah, learned counsel for the petitioner submits that the petitioner herein is the eldest son of the deceased employee who expired on 29.06.2003 when the petitioner was still a minor aged 11(eleven) years old. The learned counsel submits that the petitioner on attaining majority, had applied for appointment on compassionate Page 1 of 8 ground in the year 2009, and it was only in 2013 that the petitioner was informed vide letter dated 21.03.2013 by the respondent No. 2 that he was placed at Sl. No. 19 in the list for consideration for appointment on compassionate ground. Learned counsel submits that the respondents then by letter dated 10.11.2014 communicated that after review by the Compassionate Appointment Committee, the petitioner was placed at Sl. No. 37, and thereafter down the years, the Sl. No. of the petitioner went to Sl. No. 40 in 2016, Sl. No. 41 in 2017 and Sl. No. 49 in 2018. Learned counsel has also drawn the attention of the Court to the fact that the appointment on compassionate ground is based on the recommendations of the Compassionate Appointment Committee as per the indigent index. In this context, learned counsel submits that as per this index the petitioner is now placed at 10.1 and it is the norm that a person whose indigent index is less than 10 (points) is no longer considered eligible for appointment. Learned counsel submits that on this aspect also, the respondents have acted arbitrarily and delayed his case which has resulted in his low indigent index ranking.
4. Another contention, as submitted by the learned counsel is that the respondents have not complied with the prescribed Scheme for consideration of appointment which has resulted in the deprivation of the petitioner of gainful employment. Learned counsel submits that as per the Scheme which is contained in the Office Memorandum dated 09.10.1998 issued by the Ministry of Personnel, Public Grievances & Pension (Department Personnel & Training), it is incumbent as provided in Para-12 (b) that immediately after the death of the Page 2 of 8 employee, the Welfare Officer should have met the family of the deceased to advise and assist them in getting compassionate ground and also that Para-12 (c) provides that application for compassionate appointment should be considered by a Committee of Officers consisting of 3(three) Members. Learned counsel submits that this was not adhered to and that no Welfare Officer had come to meet the family after the demise of the deceased employee and that also the Committees set up were arbitrary with as many as 6(six) Members being present. He also contended that the Committee did not sit as prescribed, but it seems on the contrary, the report was made only on a yearly basis. For all these lapses, it is contended by the learned counsel that the petitioner had been illegally deprived of his legitimate claim for compassionate appointment and that the non-adherence to the Scheme has caused violation of the fundamental rights of the petitioner. Learned counsel in furtherance to this contention, has placed reliance on the judgment in the case of State Bank of India & Anr. vs. Somvir Singh reported in (2007) 4 SCC 778 to establish the point that compassionate appointment can only be granted by the way of Scheme which he maintains has been violated. Reliance also has been placed on the judgment rendered in the case of Mohan Mahto v. M/s Central Coal Fields Ltd. & Ors. reported 2007 (9) SBR 449 wherein it has been held that the grant of appointment on compassionate ground is an exception of Article 16 (1) of the Constitution of India. Learned counsel lastly prays that a mandamus be issued directing the respondents to grant appointment to the petitioner Page 3 of 8 on compassionate ground in view of the facts and circumstances as put forth.
5. Dr. N. Mozika, learned ASG assisted by Mr. J.I. Nongrum, learned counsel for the respondent No. 1 & 2 has at the outset submitted that the writ petition is hopelessly barred by delay and laches, inasmuch as, the deceased employee had expired in 2003, the application for compassionate appointment was only made in 2009, i.e. 6(six) years after the death of the employee, and that the petitioner has come to Court only on July, 2017, by way of this instant writ petition, i.e. a total of 14(fourteen) years after the demise of the employee. Learned Senior counsel submits that this delay defeats the very purpose of compassionate appointment which had been formulated to provide immediate succor to the family of the bereaved to tide over the crisis caused due to the death of an employee. In this regard, the learned Senior counsel has placed reliance on the judgment of Government of India & Anr. vs. P. Venkatesh reported in (2019) 15 SCC 613 and in the case of State of J&K & Ors. vs. Sajad Ahmed Mir reported (2006) 5 SCC 766.
6. On the other contentions raised by the petitioner such as the delay in considering the application, the learned Senior counsel submits that in no manner can any delay be attributed to the respondent No. 1 & 2, inasmuch as, firstly the father of the petitioner did not submit any nomination for retirement/death benefits but in fact had left behind several claimants as after the death of first wife, he had also taken a second and third wife from which he had issues, who necessarily were eligible for consideration for grant of death benefits. Page 4 of 8 Learned Senior counsel also submits that this imbroglio was finally settled before this Court by order dated 21.05.2008 passed in RFA No. 13 (H) 2006, whereby the family pension was disbursed amongst the claimants who were the second wife and all the children of the deceased employee. It is submitted that only after this was settled, was the application for compassionate appointment taken up for active consideration.
7. Learned Senior counsel submits that consequently the respondents did an appraisal and cases were reviewed and that as per a revised priority list based on the indigent index, the petitioner was placed at Sl. No. 19 in the list for the year 2013 and thereafter at Sl. No. 37 in the year 2014. Learned counsel submits that the practice is that cases which are placed at the priority list are reviewed every year on receipt of fresh applications for compassionate appointment and after considering the same and awarding points to various elements as per the existing procedure i.e. number of dependent family members, number of years of service left at time of death, amount of family pension and terminal benefits received, the indigent index is computed. Learned counsel further submits that fresh cases that arrive are interpolated with the existing priority list and a fresh list is prepared every year which accounts for the change in the priority list based on the indigent index. The learned Senior counsel then submits that the petitioner was intimated as to his position which was arrived at after scrutiny by the Compassionate Appointment Committee. Moreover, he submits appointment on compassionate is being considered every year based on the serial numbers of the priority list of the particular year Page 5 of 8 within the prescribed 5% quota each year which amounts to only 3 to 5 vacancies, and it is impossible to provide appointment to every applicant as at present there is a large number of applications with higher indigent score index. The learned Senior counsel then submits that there being no illegality in the process adopted nor any arbitrariness on the part of the respondents, no case has been made out to warrant any interference by this Court.
8. Having heard learned counsels for the parties, it is to be noted that the object of compassionate appointment which is an exception to Article 16 (1) and as has been reiterated by a catena of judgments of the Hon'ble Supreme Court, is to address the immediacy of the need and it is not meant to entertain stale claims. A scheme for the grant of compassionate appointment does not constitute a reservation of a post in favour of a member of the family of the deceased employee, and there is no general right which can accrue to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority.
9. In the instant case, a glaring fact that cannot be ignored is the delay in pursuing the matter both at the level of the respondents Department and also in approaching this Court. As held in the case of Government of India & Anr. vs. P. Venkatesh (supra) which has also relied on the judgment of Umesh Kumar Nagpal vs. State of Haryana reported in (1994) 4 SCC 138, the essence of claim lies in immediacy of need. The relevant part of the judgment is reproduced at Para- 9 &
10. Page 6 of 8
"9. In Umesh Kumar Nagpal v. State of Haryana, this Court held thus: (SCC p. 140, para 2) "2.... 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"
10.Bearing in mind the above principles, this Court held: (Umesh Kumar case, SCC pp. 141-42, para 6) "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."
In the case of State of J&K & Ors. vs. Sajad Ahmed Mir (supra) the Hon'ble Supreme Court while discussing delay and laches and that such appointments are an exception to the general rule in Para 11 & 12 held as follows:-
"11. We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought "compassion", the Bench ought to have considered the larger issue as well and 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 compete with each other. It is in consonance with Article 14 to the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except Page 7 of 8 where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite 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.
12. In the State of Haryana v. Rani Devi, it was held that the claim of the applicant for appointment on compassionate ground is based on the premise that he was dependent on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution. However, such claim is considered reasonable as also allowable on the basis of sudden crisis occurring in the family of the employee who had served the State and died while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative instructions which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right."
10. By application of settled law therefore, no case has been made out by the petitioner for issuance of any direction or for any interference by this Court. Further, no discernable grounds have been made out to show that there was any failure on the part of the respondent No. 1 & 2 in complying with the Scheme for compassionate appointment, nor any materials placed on record to substantiate the allegations that there was any illegality or arbitrariness on the part of the respondents.
11. For the reasons and circumstances stated above, there is no merit in the instant writ petition and the same is accordingly dismissed.
12. No order as to costs.
JUDGE Meghalaya 03.02.2021 "V. Lyndem-PS"
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