Jharkhand High Court
Managing Director vs Ramawati Devi @ Ramawait Devi on 30 August, 2018
Author: D.N. Patel
Bench: D.N. Patel, Amitav K. Gupta
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 16 of 2014
with
I.A. No. 5040 of 2014
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Managing Director, Steel Authority of India Limited, Bokaro Steel Plant,
Bokaro Steel City, P.O. & P.S. Bokaro Steel City, District Bokaro,
Jharkhand
.... Appellant
Versus
Ramawati Devi @ Ramawait Devi, wife of late Saheb Yadav, resident of
Sector-12B, Qtr. No. 1232, Bokaro Steel City, P.O. Sector 12, P.S. Bokaro,
District Bokaro, Jharkhand.
.... Respondent
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CORAM: HON'BLE MR. JUSTICE D.N. PATEL
HON'BLE MR. JUSTICE AMITAV K. GUPTA
For the Appellant : M/s Indrajit Sinha & Vijay Kant Dubey, Advocates
For the Respondent : M/s. Ramit Satendra, Sweta Singh, Advocates.
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th
16/Dated: 30 August, 2018
Oral order:
Per D.N. Patel, J.:
1. This Letters Patent Appeal has been preferred by the original respondent in W.P.(S) No.8095 of 2012. The writ petition was preferred by the respondent for getting compassionate appointment because of death of her husband which had taken place on 01.01.1994. The application for compassionate appointment was preferred by the respondent (original petitioner) on 4th August, 2008. The writ petition was allowed and the direction was given to give compassionate appointment after 14 years from the date of death of husband of the original petitioner and hence, the original respondent has preferred the present Letters Patent Appeal.
2. Having heard counsels for both the sides and looking to the facts and circumstances of the case, it appears that respondent is an original petitioner who had preferred writ petition being W.P.(S) No.8095 of 2012 for getting compassionate appointment because of death of her husband. Her husband expired on 01.01.1994.
3. Application was preferred by the wife/widow for compassionate appointment of her son.
24. The application was preferred on 4th August, 2008 for compassionate appointment. Thus, the application for compassionate appointment was preferred after 14 years from the date of death of the original employee.
5. It ought to be kept in mind that the compassionate appointment is not a matter of right at all. Compassionate appointment is an exception to Article 14 and 16 to the Constitution of India. Compassionate appointment is normally given to provide immediate financial support to family of the deceased. After 14 long years there was no need for the direction to be given by the learned Single Judge to support the family of the deceased as the very purpose of grant of compassionate appointment is frustrated by now.
6. It has been held by the Hon'ble Supreme Court in the case of Life Insurance Corporation of India v. Asha Ramchhandra Ambekar reported in (1994) 2 SCC 718, especially in paragraph nos. 10, 11 and 13 as under:
"10. Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. No doubt Shakespeare said in "Merchant of Venice":
"The quality of mercy is not strain'd; It droppeth, as the gentle rain from heaven Upon the place beneath it is twice bless'd; It blesseth him that gives, and him that takes;"
These words will not apply to all situations. Yeilding to instinct will tend to ignore the cold logic of law. It should be remembered that "law is the embodiment of all Wisdom". Justice according to law is a principle as old as the hills. The courts are to administer law as they find it, however, inconvenient it may be.
11. At this juncture we may usefully refer to Martin Burn Ltd. v. Corporation of Calcutta. At page 535 of the Report the following observations are found:
"A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not."
The courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, it should never be done. In the very case itself, there are regulations and instructions which we have extracted above. The court below has not even examined whether a case falls within the scope of these statutory provisions. Clause 2 of sub-clause (iii) of Instructions makes it clear that relaxation could be given only 3 when none of the members of the family is gainfully employed. Clause 4 of the circular dated January 20, 1987 interdicts such an appointment on compassionate grounds. The appellant Corporation being a statutory Corporation is bound by the Life Insurance Corporation Act as well as the Statutory Regulations and Instructions. They cannot be put aside and compassionate appointment be ordered.
13. It is true that there may be pitiable situations but on that score, the statutory provisions cannot be put aside."
(Emphasis supplied).
7. It has been held by the Hon'ble Supreme Court in the case of Jagdish Prasad v. State of Bihar, reported in (1996) 1 SCC 301 especially in paragraph nos. 2 and 3 as under:
"2. The High Court had dismissed the writ petition seeking appointment of the appellant on compassionate grounds. The admitted fact is that he was four years' old at the time when his father died in harness in the year 1971. He filed the writ petition after attaining majority in 1994 for a direction to appoint him on compassionate grounds which was negatived.
3. It is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that, therefore, the court is required to examine whether the appointment should be made on compassionate grounds. We are afraid, we cannot accede to the contention. 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 that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased government servant which cannot be encouraged, de hors the recruitment rules.
(Emphasis supplied)
8. It has been held by the Hon'ble Supreme Court in the case of Sanjay Kumar Vs. State of Bihar and others reported in (2000) 7 SCC 192 especially in paragraph no. 3 as under:
"3. We are unable to agree with the submissions of the learned Senior Counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the breadearner who had left the family in penury and without any means of livelihood. In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education v. Pushpendra Kumar. It is also significant to notice that on the date when the first application was made by the petitioner on 2-6-1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such 4 time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief."
(Emphasis supplied).
9. It has been held by the Hon'ble Supreme Court in the case of MGB Gramin Bank Vs. Chakrawarti Singh reported in (2014) 13 SCC 583 especially in paragraph nos. 6 to 9 as under:
"6. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its breadearner. Mere death of a government employee in harness does not entitle the family to claim compassionate employment. The competent authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing 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. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.
7. In Umesh Kumar Nagpal v. State of Haryana this Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court observed as under: (SCC pp. 140-41, paras 2, 4 & 6) "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 the post held by the deceased. ... The exception to the rule made in favour of the family of the deceased employee is in consideration 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.
4. ... The only ground which can justify compassionate employment is the penurious condition of the deceased's family.
* * *
6. ... The consideration for such employment is not a vested right.... The object being to enable the family to get over the financial crisis ...."
(emphasis added)
8. An "ameliorating relief" should not be taken as opening an alternative mode of recruitment to public employment. Furthermore, an application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated.
59. The courts and the tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments."
(Emphasis supplied).
10. In view of the aforesaid decisions and looking to the fact that compassionate appointment cannot be given after 14 long years these aspects of the matter have not been properly appreciated by the learned Single Judge while allowing the writ petition preferred by the respondent being W.P.(S) No.8095 of 2012 vide judgment and order 10th December, 2013. Charity beyond law is a cruelty to others. Highest charitable person is the law itself.
11. Counsel for the respondent has submitted that one similarly situated Smt. Sheela Devi, wife of Late Dwarika Yadav was given employment. Be that as it may, one illegality cannot support another. There is no need to maintain equality, in illegality by this appellant.
12. It has been held by the Hon'ble Supreme Court in the case of Bihar Public Service Commission & Others vs. Kamini & others, reported in (2007) 5 SCC 519 especially in paragraph no. 10 as under:
"10. In our opinion, the submission of the learned counsel for the Commission is well founded and must be accepted. Therefore, even if in 1993, some ineligible candidates were wrongly treated as eligible, the first respondent cannot insist that she also must be treated eligible though she is ineligible. In our considered opinion, such an action cannot give rise to equality clause enshrined by Article 14 of the Constitution. It is well settled and needs no authority that misconstruction of a provision of law in one case does not give rise to a similar misconstruction in other cases on the basis of doctrine of equality. An illegality cannot be allowed to be perpetuated under the so-called "equality doctrine". That is not the sweep of Article 14. Even that contention, therefore, has not impressed us."
(Emphasis supplied)
13. It has been held by the Hon'ble Supreme Court in the case of General Manager, Uttaranchal Jal Sansthan vs. Laxmi Devi & others, reported in (2009) 7 SCC 205 especially in paragraph no. 34 as under:
"34. Submission of the learned counsel that persons similarly situated have been appointed is again of not much relevance. Apart from the fact that the High Court in its impugned judgment did not proceed on the said basis, it is now well settled that Article
14 of the Constitution of India carries with it a positive effect. Equality clause cannot apply in a case where it arises out of 6 illegality. Moreover, grant of appointment on compassionate ground has its own limitations as it is an exception to the mode of regular appointment."
(Emphasis supplied).
14. It has been held by the Hon'ble Supreme Court in the case of Rajasthan State Industrial Development & Investment Corporation vs. Subhash Sindhi Cooperative Housing Society, Jaipur & others reported in (2013) 5 SCC 427 especially in paragraph no. 19 as under:
"19. Even if the lands of other similarly situated persons have been released, the Society must satisfy the Court that it is similarly situated in all respects, and has an independent right to get the land released. Article 14 of the Constitution does not envisage negative equality, and it cannot be used to perpetuate any illegality. The doctrine of discrimination based upon the existence of an enforceable right, and Article 14 would hence apply, only when invidious discrimination is meted out to equals, similarly circumstanced without any rational basis, or to relationship that would warrant such discrimination."
(Emphasis supplied)
15. Hence, the contention of the respondent that Smt. Sheela Devi, wife of Late Dwarika Yadav was given employment and therefore, the respondent (original petitioner) should also be given employment is not tenable at law.
16. We therefore, quash and set aside the judgement and order passed by the learned Single Judge in W.P.(S) No.8095 of 2012 dated 10th December, 2013.
17. This Letters Patent Appeal is allowed and disposed of. In view of the final order passed in Letters Patent Appeal, I.A. No. 5040 of 2014 also stands disposed of.
(D.N. Patel, J.) (Amitav K. Gupta, J.) VK/NAFR