Gauhati High Court
Nabanita Lahkar vs The State Of Assam And 3 Ors on 3 August, 2020
Author: Manish Choudhury
Bench: Ajai Lamba, Manish Choudhury
Page No.# 1/7
GAHC010089582020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA 74/2020
1:NABANITA LAHKAR
D/O LATE KARUNA LAHKAR, R/O VILL. NO. 2 LAZUM, WARD NO. 3, P.O.
MARGHERITA (NEAR CIVIL HOSPITAL), P.S. TINSUKIA, DIST. TINSUKIA,
ASSAM, PIN 786181
VERSUS
1:THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
ASSAM, FOREST DEPTT., DISPUR, GUWAHATI 06
2:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS
ARANYA BHAWAN
BELTOLA
GUWAHATI-29
ASSAM.
3:DIVISIONAL FOREST OFFICER
DIGBOI DIVISION
DIGBOI
DIST. TINSUKIA
PIN 781171
ASSAM.
4:FOREST RANGE OFFICER
MARGHERITA WEST RANGE
DIST. TINSUKIA
PIN 786181
ASSAM
Counsel for the Appellant(s) : Mr. J. Kalita, Advocate
Counsel for the Respondent(s) : Mr. P. N. Goswami, SC, Forest Department
Page No.# 2/7 BEFORE HON'BLE THE CHIEF JUSTICE MR. AJAI LAMBA HON'BLE MR. JUSTICE MANISH CHOUDHURY 03.08.2020:
(Manish Choudhury, J)
1. The Court proceedings have been conducted through Video-Conference.
2. We have heard Mr. J. Kalita, learned counsel for the appellant and Mr. P. N. Goswami, learned Standing Counsel, Forest Department.
3. Nabanita Lahkar has preferred this intra Court writ appeal in challenge to judgment dated 11.03.2020 rendered in WP(C) No.751/2020 titled Nabanita Lahkar vs. The State of Assam and 3 Others.
4. The uncontroverted facts appear to be that father of the writ appellant/petitioner died in harness on 07.12.1995 while serving as Forester-I in the Forest Department leaving behind his wife and two minor daughters, the writ appellant being the younger daughter. Mother of the writ appellant i.e. wife of the deceased employee filed an application for compassionate appointment on 03.02.1996. It appears that the said application was neither rejected nor allowed.
5. It transpires that writ appellant's elder sister did not apply for compassionate appointment. According to the writ appellant, she filed an application for compassionate appointment in 2007. However, the Forest Department, as it transpires from Annexure-8 document, recorded the date of writ appellant's application as 03.02.2010 i.e. after more than 14 years of death of the employee in harness. In response to Forest Department's communication dated 08.04.2014, the writ appellant submitted the details on 22.04.2014 vide Annexure-6.
6. Learned counsel for the writ appellant admits that writ in the nature of mandamus was not filed to pursue the claim on behalf of the mother of the writ appellant to seek a decision on the application for compassionate appointment made on 03.02.1996 (supra).
7. On the direction of the Court the scheme under which the appointment on Page No.# 3/7 compassionate ground has been sought, has been appended with additional affidavit as Annexure-A18. Para 7 of the scheme reads as under:
"XXXXXXXXXXXXXXX
7. While considering an appointment under this scheme the appointing authorities will keep it in mind that the concept of compassionate appointment is limited to the need for immediate assistance. If several years has passed after the death of the Government servant to support itself all these years and has some means of subsistence. In such a case, compassionate appointment under this scheme should be carefully examined from the point of views of immediate need for assistance to ensure that only the most deserving gets the benefit of the scheme.
XXXXXXXXXXXXX"
(emphasised by us)
8. The learned Single Judge having considered the said aspect has dealt with the matter and rejected the claim for compassionate appointment for the reason of delay in filing an application for compassionate appointment.
9. We have considered the law on the issue as laid down by Hon'ble Supreme Court of India in Umesh Kumar Nagpal vs. State of Haryana and Others, reported in (1994) 4 SCC 138, which is in the following terms:
"XXXXXXXXXXXXXXXX
2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed Page No.# 4/7 strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. 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. 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 dependant 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 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.
Page No.# 5/7 XXXXXXXXXXXXXX"
(emphasised by us)
10. The Hon'ble Supreme Court in Umesh Kumar Nagpal (supra) has further gone to observe in para 6 as under:
"XXXXXXXXXXXXX
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.
XXXXXXXXXXXXXX"
(emphasised by us)
11. The above observations made in Umesh Kumar Nagpal (supra) have been reiterated by the Hon'ble Supreme Court in a recent decision in Government of India and another vs. P. Venkatesh, reported in (2019) 15 SCC 613.
In P. Venkatesh's case (supra) the widow of the deceased employee submitted her representation for compassionate appointment on 03.01.1997, after the death of her husband on 25.05.1996. After rejection of her representation on 03.01.1997 at the first instance, proceeding was initiated before the Central Administrative Tribunal in the year 2007. In such backdrop, the Hon'ble Supreme Court has observed that the recourse to the Tribunal had suffered from a delay of over a decade in the first instance. The staleness of the claim had taken away the very basis of providing compassionate appointment and had, thus, merited its rejection.
12. From the above, it becomes clear that the Hon'ble Supreme Court of India has held that as a rule appointments in the public service should be made strictly on the basis of open invitation of applications and merit. However this general rule which is to be followed strictly Page No.# 6/7 in every case, there are certain exceptions carved out in the interest of justice. One such exception is in favour of dependent of an employee dying in harness and leaving his family in penury and without any means of livelihood. The object of granting compassionate employment is to enable the family to tide over the sudden crisis.
It has further been held and clarified that 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 object of such employment has been asserted by saying that it is only to enable the family to get over the financial crisis which it faces at the time of death of the sole breadwinner, compassionate employment is offered. Compassionate employment cannot be claimed and offered after lapse of time after the crisis is over.
13. Applying the said law to the facts of this case it becomes evident that the employee, i.e. father of the writ appellant/writ petitioner died in harness on 07.12.1995. Wife of the deceased employee made an application for compassionate appointment on 03.02.1996, however did not pursue the claim. It is only after over a decade of the death of the employee that his daughter/writ petitioner claimed appointment on compassionate ground. Even though the writ appellant/writ petitioner was a minor and could not have applied for employment at the time of death of her father, the employee who died in harness, however that in itself would not entrust a right in the writ appellant/writ petitioner to claim employment at any time later. It cannot be held that right under such an exception to the rule of giving employment in public service would continue even after over a decade, particularly when mother of the writ appellant did not pursue her claim, and as noticed in later part of this judgment, the family started getting pension from the employer of the employee who died in harness. Surely, such passage of time cannot be ignored, when object of giving employment on compassionate ground is considered in terms of the law laid down by Hon'ble Supreme Court of India in Umesh Kumar Nagpal (supra).
14. We have also seen the equitable aspect of the issue. In the additional affidavit filed on Page No.# 7/7 the direction of the Court, it has been brought out that after the death of the father of the writ appellant, the mother received a sum of Rs.18,660/- as gratuity and Rs.22,975/- as provident fund. Other than the said amounts, regular pension is being received in the sum of Rs.8,638/- per month. The family has survived since 1995 when the employee died in harness.
15. We find no ground in law or in facts to interfere with the judgment rendered by learned Single Judge. It is settled law that in an intra Court appeal if a possible view has been taken by the learned Single Judge, in intra Court appellate jurisdiction, the appellate Court shall not interfere only because a better view is possible.
16. This appeal is found devoid of merit and the same stands dismissed. No costs.
JUDGE CHIEF JUSTICE Comparing Assistant