Rajasthan High Court - Jodhpur
Smt. Gulab Kanwar vs Union Of India on 18 October, 2019
Bench: Sangeet Lodha, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 6216/2019
Smt. Gulab Kanwar W/o Late Sh. Narain Singh, Aged About 48
Years, R/o Village Devli Khurd, Tehsil Parbatar, District Nagaur,
Rajasthan.
----Petitioner
Versus
1. Union of India, Through The Secretary, Ministry of
Defence, Raksha Bhawan, New Delhi.
2. The Commandant, 19 Field Ammunition Depot (FAD), Pin
Code 909719 C/o 56 APO.
3. The Personnel Officer, 19 Field Ammunition Depot (FAD),
Pin Code 909719 C/o 56 APO.
----Respondents
For Petitioner(s) : Mr. S.K.Malik
For Respondent(s) : Ms. Apurwa Mathur for Mr.Sanjeet
Purohit
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment 18/10/2019
1. This writ petition is directed against order dated 26.10.18 passed by the Central Administrative Tribunal (CAT), Jodhpur Bench, dismissing an original application preferred by the petitioner questioning the legality of orders dated 31.7.2000, 9.10.01 and 12.2.16 issued by the Commandant, 19 Field Ammunition Depot C/O 56 APO, rejecting the claim of the petitioner for appointment on compassionate ground.
2. The facts relevant are that the petitioner's husband Shri Narain Singh died while in service of the respondents on 25.6.98. As per the averments made by the petitioner, vide communication (Downloaded on 22/10/2019 at 08:49:05 PM) (2 of 7) [CW-6216/2019] dated 6.3.99 she was informed by the respondents to make an application for appointment on compassionate ground if she so desire. The petitioner made the application but the same was not considered by the respondents. According to the petitioner, she used to visit office of the respondent after every six months and was assured by the respondents that she will be accorded appointment. According to the petitioner, she inquired about the fate of her application vide letter dated 29.1.16, in response whereof, vide communication dated 12.2.16, she was informed that her application has already been rejected vide order dated 31.7.2000 and information in this regard was also sent to her vide communication dated 9.10.01. Aggrieved by the action of the respondents in rejecting the application seeking appointment on compassionate ground, the petitioner preferred an original application before the CAT accompanied by an application seeking condonation of delay, which stands rejected by the order impugned as barred by limitation. Hence, this petition.
3. Learned counsel appearing for the petitioner contended that the communication dated 31.7.2000 and 9.10.2001 were never served upon the petitioner and she came to know about the rejection of the application only vide communication dated 12.2.16 and thus, the CAT has seriously erred in rejecting the application as bared by limitation. Relying upon the decision of the Supreme Court in the matter of Collector, Land Acquisition, Anantnag and Anr. vs. Mst. Katiji and Ors.: AIR 1987 SC 1353, learned counsel submitted that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred inasmuch as other side, cannot claim to have vested right in injustice being done because of a non (Downloaded on 22/10/2019 at 08:49:05 PM) (3 of 7) [CW-6216/2019] deliberate delay. Learned counsel submitted that merely on account of the application being filed belatedly, the CAT was not justified in rejecting petitioner's meritorious claim.
4. On the other hand, learned counsel appearing for the respondents submitted that the order dated 31.7.2000 rejecting the application of the petitioner was communicated to her and thereafter, vide yet another communication dated 9.10.2001, she was informed about the factum of rejection of the application. Learned counsel submitted that as a matter of fact, the representation dated 29.1.2016 appears to have been made by the petitioner apparently with an intention to cover up the inordinate delay in challenging the order rejecting the petitioner's application for compassionate appointment. Learned counsel submitted that if the petitioner's claim was not considered by the respondents, the petitioner was not precluded from availing the appropriate remedy at the relevant time. Learned counsel submitted that even otherwise, after lapse of about 21 years, the question of the petitioner's application being considered for compassionate ground, does not arise.
5. We have considered the rival submissions of the learned counsel for the parties and perused the material on record.
6. Indisputably, the petitioner's husband expired on 25.6.98. As per the documents placed on record, the petitioner made application for appointment on compassionate ground on 21.11.98, however, on account of limited number of vacancies at the relevant time, as per the eligibility criteria to determine the hardship, she was not found eligible for appointment. Later, vide communication dated 31.7.2000, the petitioner was extended one more opportunity to make an application for appointment by 20 th (Downloaded on 22/10/2019 at 08:49:05 PM) (4 of 7) [CW-6216/2019] of August, 2000 (Annexure A/3). The application preferred by the petitioner on 14.8.2000 also stood rejected vide order dated 9.10.01 ( Annexure A/2). Though, the petitioner has averred that she was never informed about the rejection of the applications, however, it is not the case set out by the petitioner that she ever made representation to the respondents complaining against non consideration of her application seeking appointment on compassionate ground. If the petitioner's application was not considered by the respondents or the order impugned rejecting the applications were not communicated, nothing prevented the petitioner to avail the appropriate remedy available under the law, questioning the inaction of the respondents in not considering her legitimate claim for appointment. On the facts and in the circumstances of the case, in the considered opinion of this court, the petitioner cannot claim accrual of the cause of action on the basis of the communication dated 12.2.16 issued by the respondent in response to the representation dated 29.1.16, whereby she has only been informed about rejection of her claim way back in the year 2000 and 2001. In this view of the matter, in the considered opinion of this court, the CAT has committed no error in rejecting the application preferred by the petitioner, after inordinate delay of 17 years, without there being any plausible and acceptable explanation.
7. There is yet another aspect of the matter. The scheme for appointment on compassionate ground is framed so as to extend an immediate succor to the bereaved family of the deceased government servant, who has died in harness. The appointment on compassionate ground, an exception carved out to the relevant (Downloaded on 22/10/2019 at 08:49:05 PM) (5 of 7) [CW-6216/2019] recruitment rules governing the public employment to meet particular contingency, cannot be claimed as a matter of right.
8. In the matter of "Umesh Kumar Nagpal Vs. State of Haryana", [1994(4) SCC 138], Hon'ble Supreme Court has observed that "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 Hon'ble Court has further observed that "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."
9. In "State of J&K vs. Sajjad Ahmed Mir", 2006(5) SCC, 766, the Hon'ble Apex Court observed as under :
"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 (Downloaded on 22/10/2019 at 08:49:05 PM) (6 of 7) [CW-6216/2019] Government or other public sector 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 of 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 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." (Emphasis supplied)
10. Similarly, in Jagdish Prasad Vs. State of Bihar, (1996 (1) SCC
301) the Hon'ble Supreme Court opined as under :
"The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if the contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased Government servant which cannot be encouraged dehors the recruitment rules."
11. Relying upon the aforesaid decision of the Hon'ble Supreme Court in Jagdish Prasad's case, a Division Bench of this Court in 'Shambhu Puri Vs. State', 2003 WLC (Raj.) 404, opined as under :
"9. However, we are of the opinion that this Court would not issue a writ of mandamus in view of the aforesaid decision of the Supreme Court in Jagdish Prasad's case (Supra), which is more nearer to him to the case at hand. Compassionate appointment to be offered to a dependent of the deceased Government employee who dies in harness is not a vested right and his appointment cannot be kept waiting if he is minor, till he gets the age of maturity, whatever may be the intervening period, the object of the compassionate appointment as an under exception to general rule is to tide over the immediate crisis which arises on account of the death of the breadwinner of the family and it ceases to exist with the passage of time and the difficulty, it any, faced by the family, (Downloaded on 22/10/2019 at 08:49:05 PM) (7 of 7) [CW-6216/2019] becomes at par with the difficulty faced by any other family who too is in search of employment for any of the members. In such cases, no preferential treatment other (sic) the Rules of 1996 can be given."
12. Thus, it is settled law that the appointment on compassionate ground dehors the relevant recruitment rules is offered to the dependent of deceased government servant to tide over the sudden crisis which arises on account of sad demise of breadwinner of the family, therefore, no one can claim the appointment on compassionate ground at any time in future after the crisis period is over.
13. Admittedly, the petitioner and her family have survived without appointment being granted for all these years and at this stage, when the crisis occurred on account of sudden death of petitioner's husband is over, the petitioner cannot be granted appointment on compassionate ground after a lapse of about 21 years since death of her husband.
14. In view of the discussion above, the order impugned passed by the CAT does not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by us in exercise of extra ordinary jurisdiction of this court under Article 226 of the Constitution of India.
15. In the result, the petition is dismissed. No order as to costs.
(VINIT KUMAR MATHUR),J (SANGEET LODHA),J
62-Aditya/-
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