Punjab-Haryana High Court
Ravinder Kumar vs State Of Punjab And Ors on 17 December, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.20609 of 2014
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.20609 of 2014
Date of Decision: 17.12.2014
Ravinder Kumar ..... Petitioner
Versus
State of Punjab and others ... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. S.L. Chander Shekhar, Advocate,
for the petitioner.
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
The petitioner claims compassionate appointment from the State for the reason that his father was became a victim of terrorism in the dark days of Punjab. His father was killed in 1987 and the matter was investigated on the criminal side in Police Station Bhikhiwind in District Tarn Taran. The petitioner's mother worked with Government as a Staff Nurse. The petitioner was not then a year old when his father passed away. By the time, the petitioner had obtained the Diploma in Radiography and completed his educational career in 2009. He laid a claim for a compassionate appointment as a dependant of a terrorist victim. On his request for compassionate appointment, the petitioner was called for interview in November 2010 but nothing came of it. Thereafter, he has been running from pillar to post claiming a suitable job. Uncertain about the status of his case, he applied for information under the RTI Act in March 2014 and was informed that his case has been forwarded to the District MANJU 2014.12.24 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.20609 of 2014 -2- Selection Committee headed by the Deputy Commissioner, Tarn Taran, for processing. He was informed that his case for compassionate appointment has been considered and rejected on November 29, 2010 on the ground that his mother was in Government service and he was dependent on her. She died after his case was rejected. He relies on a circular of the Punjab Government dated May 25, 1990 claiming priority in category No.1 of the policy instructions for appointment to Government service in Class-III & IV which grants benefit of compassionate appointments to victims of terrorist violence and victims of November 1984 riots. He belongs to the former category. The Punjab Government has from time to time issued policy instructions on May 25, 1990 and subsequent instructions which were issued on June 20, 2001, June 18, 2002 and then on July 09, 2008. His trump card is an Identity Card issued by the District Administration certifying that he is a member of terrorist victim family issued to his late mother Shanti Devi.
On his own showing, the petitioner was about 24 years of age when his case for compassionate appointment was rejected on November 29, 2010. There is no averment in the body of the writ petition or in any document filed with the writ petition that he was not communicated the rejection order dated November 29, 2010 all this while. All that he says is that on a request under RTI made on March 20, 2014 he was informed of the rejection of his request. In the absence of any specific averment in the writ petition that he was not served or informed of the passing of the rejection order dated November 29, 2010 which was adverse to him so that he could have safe guarded his interest and act within the limitations to to MANJU 2014.12.24 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.20609 of 2014 -3- take recourse to law. The limitation for calling in question the impugned order had run out on the date of filing the present petition on September 30, 2014 which has been listed for motion hearing today. Even if a suit was brought challenging the impugned order dated November 29, 2010 it would have been barred by limitation. In a case where the limitation for bringing suit has run out it would be proper for the writ court to dismiss the petition even though its jurisdiction suffers no bar of limitation and while entertaining petitions deals with issues of delay and laches and whether they may disentitle a person to relief.
The policy instructions dated July 09, 2008 (P-7) issued by the Punjab Government in the Revenue, Rehabilitation & Disaster Department reconsidered the Government letter dated October 18, 2001 and laid down that pending applications and applications to be received in the future claiming appointment on compassionate grounds by dependent members of persons who died during terrorism and riots and the handicapped persons suffering 100% disability would be disposed of by the Deputy Commissioners of the Districts where the applications are made. Their cases would be considered by the District Selection Committees who would send their recommendations to Government for filling up vacant post in different departments. The instructions posit rights exclusively on dependent members and none other. It is this non-dependency of the petitioner which has been inversely denied to the applicant petitioner a compassionate appointment for the reason that his mother is a Government servant and he is not dependent on her. The question of dependency is one of fact based on financial support, a thing which can change with time and can never remain MANJU 2014.12.24 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.20609 of 2014 -4- static.
Other than bar of limitation it remains to be seen on merits whether the above said grounds of rejection in the present case has been improper. Admittedly, the petitioner was born in September 1986 and his father died in June 1987. His mother Shanti Devi was a Staff Nurse in a Government hospital and was alive till after his request was rejected. Though the date of his application is not known but it is assumed on the strength of the averments made in para.4 of the petition that the request was made somewhere in 2009 for the first time on completion of educational qualifications i.e. 10+2, B.A. Part I and two years Diploma in Radiography with Training in CT Scan & MRI earned in June 2004, January 2006, November 2007 respectively and a diploma course in Computer Programming passed in January 2009. The date of death of the mother has not been pleaded but it is not disputed that she was in Government service even before the petitioner's birth. It is also not pleaded whether the petitioner as a dependent on his late mother is in receipt of family pension on her death in order to show continued loss of dependency. The financial status of the mother has also not been pleaded nor has anything been said as to size of her retirement benefits received from government. There is nothing on record to suggest whether his mother died in harness or after retirement.
It is well settled proposition of law that compassionate appointment can be based only by way of tiding over immediate financial crisis and is not a source of recruitment. Neither do claimants have a right to compassionate appointment on reaching the age of majority or by descent MANJU 2014.12.24 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.20609 of 2014 -5- [see leading cases in Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138; Jagdish Prasad v. State of Bihar (1996) 1 SCC 301; S. Mohan v. Government of Tamil Nadu, (1998) 9 SCC 485.] Quite apart from this, the petitioner does not appear to have a case for compassionate appointment on merits as well in terms of the circulars since he can no longer be said to be a dependent of a terrorist victim who died 27 years ago. When his father died on June 09, 1987, in circumstances which have not been spelt out in the petition, he was in infant and became a dependent on his mother who was in Government service, unlike his late father, and, therefore, I find no palpable error committed by the respondents in rejecting his application. The question of dependency when it is not physical can only be financial and nothing else. Dependency is kinetic, karmic and transient and remains ever changing with changing circumstances. But there is scant material placed on record to show what the petitioner has been making of himself after he earned his educational qualifications in 2009 or what he does to make a living. If his desire is only to pick up a Government job then compassionate appointment it is not the surest way to a legally enforceable right or a legitimate expectation of a job in a government office. He is free to compete for public posts as and when they are advertised as he is well armed with qualifications.
Misplaced sympathies in compassionate appointments have long been ruled out of consideration judicially. The case law on the subject principles is not necessary to be recalled only to embellish this order with the judicial trend of thought which is well embedded in the law and calls for no reaffirmation after they have been handed down from the highest Court MANJU 2014.12.24 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.20609 of 2014 -6- for guidance in decision-making. If the Court has to sympathise and show compassion while trying to do justice in a case then it must leave all aside and first address itself to the plight of street children, the poor, the homeless, the lost and the forgotten who have had no advantage of descent and the biological euphoria of birth to a government servant whose service record is strangely never seen in policies of government in making exceptions to the rule that public appointments are to be constitutionally in order. The petitioner was lucky in his grief as his mother had provision for a sustainable life as an unfortunate widow rearing a single child but still held a comfortable pensionable government job with tidy salary. Much of humanity is far less fortunate than the petitioner. This case does not bring tears to my eyes, if tears are sufficient fuel for issuing a mandamus and for this reason alone interference is not called for in this case, otherwise the court's tear ducts will run dry.
In Bhawani Prasad Sonkar versus Union of India and others, (2011) 4 SCC 209 the Supreme Court observed:
"15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules..."MANJU 2014.12.24 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.20609 of 2014 -7-
In order to stoutly press his case the learned counsel for the petitioner has fished out judgments of the High Court of Madras (Madurai Bench) delivered in N Murugan vs. Secretary to Government, Revenue Department; Collector and Tahsildar, 2010 LawSuit (Mad) 572 and the Single Bench decision of High Court of Rajasthan rendered in Virendra Singh vs. Bharat Sanchar Nigam Ltd., 2014 LawSuit (Raj) 1143. He submits that these cases are of great help to him and promote his case. Let's take a look at them.
In N. Murugan, the Court dealt with a Government order issued in the Labour and Employment Department on July 16, 1993 which relaxed the condition for appointment on compassionate grounds that even if there is already an earning member in the family of the late Government servant dying in harness and if that person is living separately without extending any monetary help to the family, the case of other eligible dependents can be considered but the benefit will be restricted only to one of the dependents for appointment on compassionate grounds. It is on the strength of this G.O. that the mother in the said case made an application for appointing another son on being satisfied that the elder son had left the family was and not supporting it. His case was recommended by the competent authority for appointment as Junior Assistant and he joined when Government accepted the recommendation. When time matured for considering the case of regularization of his services it was discovered that his elder brother was appointed as an Office Assistant in the office of an Agricultural Department in 1986; had got married and left the family. Instead of regularizing his services, the Government declared his appointment bad and set it aside MANJU 2014.12.24 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.20609 of 2014 -8- reasoning that his case was not covered by the Government Instructions dated July 27, 1994 and such a person need not be given appointment on compassionate grounds. When his services were terminated, he came to Court. The writ was allowed for the reason that when the family was in financial distress on the death of the Government servant in harness, the petitioner was an eligible dependent and his case could be considered even though his brother had secured an appointment on his own merit. The Court took the view that after three years of service in considering the petitioner's case for regularization it was not open to the respondents to go behind the earlier order and in this there was a deprivation of rights guaranteed in Article 21 of the Constitution of India. In appeal, the decision of the learned Single Judge was upheld. The case turns on its own facts just as all cases do. But I do not see how this case can be of any help to the petitioner in seeking compassionate appointment in Punjab Government service on the facts presented in the petition. The case is clearly distinguishable in terms of the circular involved and the principle involved, though not forthcoming expressly from the order, that a successor-in-interest ought not to review an order of a predecessor-in-interest passed after due application of mind. In a regularization exercise the appointment made three years prior thereto could not have been nullified as it would also be too harsh and oppressive. It was this which was faulted apart from the reasoning based on the interpretation of the Government circular.
In Virendra Singh case, the High Court of Rajasthan set aside the order rejecting request for compassionate appointment. The Court found that the case of the petitioner fell within the policy instructions and where MANJU 2014.12.24 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.20609 of 2014 -9- there is already an earning member in the family then in a deserving case; the claim can be considered with prior approval of the Secretary to Government of India in the Ministry concerned. The Court went into the financial status of the family which called for immediate aid to the family in the circumstances in which the family was placed on the death in harness of the breadwinner. This case also does not help the petitioner in his argument that only because his mother was employed as a Staff Nurse in Government hospital should not be a reason to deny him compassionate appointment. In the absence of information on the financial status of the family, it is not possible to agree with the learned counsel that his client has still a case worth consideration.
I find no merit in this petition and find that the same is liable to be dismissed in limini and it is ordered accordingly.
At this stage, the learned counsel for the petitioner seeks permission to withdraw the writ petition to pursue his administrative remedies, if any. I have rejected this request and would not permit the petitioner to withdraw the petition after arguing at considerable length and not finding the Court in agreement, the plea was made when Court was not shown any legal right to compassionate appointment based on the strength of the circulars nor had shown a corresponding duty in the respondents to re-visit the impugned order (Annexure P-6) against which, in any case, limitations have long run out for the legal remedies available in law. If he has any statutory remedies against the impugned order then he has not pointed out to them in the rules apart from not availing them. However, in case, a statutory appeal lies against the impugned order and is within MANJU 2014.12.24 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.20609 of 2014 -10- limitation prescribed for such an appeal under the rules only then the petitioner may have a right to take recourse to such measures. In which case this order will not be read against the petitioner and the appellate authority would examine the case from scratch and in accordance with law and the prevailing rules or instructions on the subject.
(RAJIV NARAIN RAINA) 17.12.2014 JUDGE manju MANJU 2014.12.24 15:18 I attest to the accuracy and authenticity of this document High Court Chandigarh