Punjab-Haryana High Court
Surinder Singh vs State Of Haryana And Ors. on 7 March, 2005
Equivalent citations: (2005)141PLR15
Author: Tapen Sen
Bench: S.S. Nijjar, Tapen Sen
JUDGMENT Tapen Sen, J.
1. The petitioner, Surinder Singh, prays for issuance of a Writ of Mandamus directing the Respondents to appoint him on compassionate considerations. The Petitioner also prays for quashing the Order dated 15.11.2002 (Annexure P-4); 10.2.2004 (Annexure P-5) as also the Order dated 11.10.2004(Annexure P-6) by which he was informed that his request for compassionate appointment had been duly considered by the Government and it was found that his case did not come within the purview of the policies of the Government and, therefore, it was not possible to accede to his request for such appointment.
2. The short facts, which are necessary to be taken note of are, that the father of the Petitioner namely Raj Singh, died in harness on 16.3.1992 while he was posted as an Excise and Taxation Inspector at Jind. He left behind four sons namely:-
(1) Surender Singh (Petitioner);
(2) Mahender Singh;
(3) Virender Singh; and (4) Savinder Singh.
3. It is stated that at the time of death, it was only the Petitioner who was a major and, the eldest son. It is also the case of the petitioner that his father was the only earning member of the family and , therefore, on account of the untimely death, the family had no other independent source of income. The petitioner has further stated that on 9.4.1992, he had filed an Application vide Annexure P-1 before the Assistant Excise-cum-Taxation Commissioner, Jind praying for compassionate appointment. The Petitioner, submits, that the said application was duly received vide Diary No. 3044 on the same day.
4. According to the petitioner, the Respondents did not do anything in the matter for 10 years and the petitioner went on making repeated requests but no action was taken. Aggrieved, the petitioner sent a representation to the Chief Minister, Haryana on 11.12.2003 vide Annexure P-3. Reacting to the aforementioned representation made to the Chief Minister, the Respondents rejected the request of the petitioner and communicated their decision by the impugned Orders/Communications dated 15.11.2002, 10.2.2004 and 11.10.2004 as contained in Annexures P-4 and P-5 and P-6.
5. According to the petitioner, he was never served with the first Order dated 15.11.2002 but he come to know about it after Annexure P-5 had been communicated to him. According to the petitioner, these Orders/ Communications, are non speaking and therefore, fit to be set aside. The petitioner also submits that as per Para 2.5 of the Instructions dated 8.5.1995 (referred to in Paragraph 9 of the Writ Petition), a dependent of a deceased employee is required to apply for compassionate employment within three years from the date of death of the said employee. The rejection Order dated 11.10.2004 (Annexure P-6) refers to the aforementioned Instructions which, according to the Petitioner, proceeds on the assumption that he had failed to make any representation within three years. This, according to the Petitioner, was totally contrary to the records because he had applied within one month from the date of death. It is further submitted that the impugned Orders suffer from non application of mind and it was not the petitioner who was sleeping over the matter but it was the Respondent Department which had actually slept for more than 12 years.
6. After having carefully considered the facts of the case, this Court is not inclined to grant any relief to the petitioner. Let it be recorded that the father of the petitioner died on 16.3.1992 and almost 13 years have gone by.
7. The consideration for compassionate appointment cannot be kept alive forever. In a similar Writ Petition, viz. C.W.P. No. 2227 of 2005, a Division Bench comprising of the Hon'ble Mr. Justice J.S. Khehar and myself, we rejected the claim of compassionate appointment and by a reasoned judgment dated 10.2.2005, after having referred to various judgments of the Supreme Court, held and observed as follows:-
"While we deal with the issue, we think that perhaps the time has now come when we should tell the Government what the Hon'ble Supreme Court of India said in the case of Umesh Kumar Nagpal. The relevant portion of paragraphs 2 and 3 of that judgment are therefore, worth reproducing as follows:-
'The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to given 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 provisions 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 make in favour of the family of the deceased employee is inconsideration 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.
Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a manner 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.' (Underlining by us]
8. We also took the view in aforementioned case of Subhash that the normal procedure for appointment was open recruitment following a lawful and legal procedure. In that context, we observed as follows:-
"Such a procedure means that appointment is made after vacancies are identified and then they are advertised calling for applications from the public at large. Upon receipt of such applications, the candidates are screened, interviewed and short-listed in a rational and reasonable manner. Legally, there are only two known methods/ modes of recruitment. One of them being open recruitment as indicated above and the other is filling up the vacant posts by promotion. The concept of compassionate appointment is a third source which has been developed on the basis of compassion but such compassion cannot be allowed to gallop like an unruly horse in favour of one or other member of the family of the deceased because if it were to be so allowed, then such a consideration would go against the expectations of millions of other families which have been subjected to similar unforeseen miseries on account of the death of their bread-winner. The concept of compassionate appointment virtually obliterates an elaborate and transparent procedure of open recruitment but in the opinion of this Court, following the observations of the Apex Court, such a procedure cannot be allowed to keep the consideration alive for a period ad finitum. If it is allowed to do so, it will encroach and create inroads into an otherwise transparent procedure commonly known as open recruitment. The effect would be that all of a sudden, when other persons are in the queue waiting for their turn for regular appointment, their legitimate expectations would abruptly be snatched away by a seeker of compassionate appointment at a time when the consideration for such appointment had become non existent - the deceased parent having died 4/5 years ago - an event which can hardly be said to be reasonable vis-a-vis persons waiting for regular appointment.
We are, therefore, of the view that there cannot be continuity of cause of action in matters to compassionate appointment.
We also take notice of the fact that the Haryana Roadways was established for the benefit of the public. It runs on the basis of the public funds of the Government. In the process of establishing a smooth network of vehicles and in order to provide comfort to the traveling public, it provides employment in a regular and lawful manner through open recruitment. Such an organization cannot be obliged to go on keeping alive the claims of every "Tom Dick and Harry" for compassionate appointment. Their obligation cannot be equated with the obligation of the State to ensure that no citizen is deprived of its livelihood. Even then, such an obligation cannot be stretched to such an extent that the State or an organisation of the State is obliged to provide employment to every member of every family whenever there is death in that family. In a matter pertaining to the claim for employment from displaced persons whose lands had been acquired, their Lordships of the Hon'ble Supreme Court of India, while dealing with the cases of Butu Prasad Kumbhar v. Steel Authority of India Ltd., 1995 Supp.(2) 225 at 229 (para 6) have held, in the context of the Rourkell a Steel Plant, that even if the Government or the Steel Plant would not have offered any employment to any person, it would not have resulted in the violation of any fundamental right. On the contrary, their Lordships have said that acceptance of demand for employment would run counter to Article 14 of the Constitution of India.
This Court is constrained therefore, to observe that Haryana Roadways has been dedicated to the public and it cannot be said to be the private property of its employees who can be allowed to raise demand for appointment whenever and wherever they like by invoking a procedure which blocks an otherwise transparent method of open recruitment. Such demands, if allowed, would deprive the management an opportunity to appoint people through open advertisement from across the country. It seems to us that on account of one or other Order/Orders passed by Courts, claims after claims are pouring into the portals of this Court raising a hue and cry about the inaction of the Government in not providing compassionate appointment. We do not find any fault with the Government nor do we wish to compel them by an Order of this Court to be subjected to a position where they will be justified in complaining that they are being deprived of their right to resort to a transparent and open method of recruitment. If we pass such an Order it would run counter to the principles of actus curiae neminem gravavit (an act of Court shall prejudice none), because this Court would frown and would not pressurize the Respondents in such a manner that it has the effect of upsetting constitutional safeguards of public bodies to get and appoint the best hands through open advertisements from across the country."
9. Having held as aforesaid in one case that this Court would frown and would not pressurize public bodies in such a manner that it has the effect of upsetting constitutional safeguards of employers to get and appoint the best of hands through open advertisements from across and country, we are of the view that such a pressure should not also be exerted upon the Government to bye-pass an elaborate and a transparent procedure.
10. Taking into consideration the facts and circumstances of this case and specially noting the fact that the father of the Petitioner died 13 years ago on 16.3.1992, we are not inclined to take a contrary view at all. We also take judicial notice of the fact that more than 13 years having gone by, it cannot therefore, be said that the family has not survived in all these years. The object of compassionate appointment in the instant case has become so remote that it cannot be allowed to be kept alive even after 13 years.
11. We, therefore, hold that the ratio laid down in C.W.P. No. 2227 of 2005 decided by us on 10.2.2005 on the basis of the judgments of the Hon'ble Supreme Court of India should also be applied in the facts and circumstances of this case. For the foregoing reasons, we hold that there is no merit in this Writ Petition, The same is consequently dismissed but there shall be no Order as to costs.