Orissa High Court
Sangathan 85 Others vs Jaya Sangram Keshari Ghadei on 18 March, 2009
Author: B.S.Chauhan
Bench: B.S.Chauhan
HIGH COURT OF ORISSA: CUTTACK WRIT PETITION (CIVIL) NO. 2369 OF 2003 In the matter of an application under Article 226 of the Constitution of India. Commissioner, Kendriya Vidyalaya Sangathan 85 others .......... .. Petitioners --Versus-- Jaya Sangram Keshari Ghadei 85 another .......... .. Opp. Parties M/s. A.Mohanty, J.
K.Sahu.H.K.Tripathy, J.P.Patra, M.K Ram .and K.Ray.
For Petitioners For -Opp_pames M/s. H.P.Rath 85 .
P R E S E N T:
THE HON'BLE CHIEF JUSTICE DR. B.S.CHAUHAN 85 THE HON'BLE MR. JUSTICE I. MAHANTY.
Date of hearing 8:, Judgment: 18.3.2009 I.Mahanty, J. In this 'writ application the Commissioner, Kendriya Vidylaya Sangathan (in short "KVS") has sought to challenge a judgment and order dated 9.12.2002, passed by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 532 of 1999, directing consideration of the grievance of opposite party no.1 for providing him employment on compassionate ground as expeditiously as possible, within a period three months from the date receipt of the copy of the said order.
2. Mr. Ashok Mohanty, learned Senior Counsel appearing on behalf of the petitioners submits that while the guidelines of the Sangathan stipulate that "if there is a ward below 18 years of age, and who alone is available for employment, then he should apply for a iob as soon as he attains the age of 18 years."
It is submitted on behalf of the petitioners that the aforesaid iguideline has not been complied with as opposite party no.l-- Jaya Sangram Keshari Ghadei was six years old at the time 'of his father's demise and though widow of the deceased employee was available for employment, no such application was made by her and therefore, the application of opposite party no.1, after he became major, i.e., attaining 18 years of age could not_ accepted andfthe same had been correctly rejected by the petitioner-Sangathan.
3. Learned counsel further submitted that the purpose of 'compassionate appointment' is intended to enable the family of the deceased employee to tide over sudden financial crisis resulting due to death of the bread earner, who had left the family in penury and Without any means of livelihood. Such a provision being a departure from the general provisions of making appointment by following the prescribed \4' LI.) procedure, is in the nature of an exception to the general provisions and therefore, an exception cannot be subsume to the main provision and thereby nullify the main provision, by taking away completely the right conferred by the main provision, for which reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Director of Education (Secondary) and another V. Pushpendra Kumar and others, (1998) 5 SCC 192. Learned counsel further reiterated the aforesaid point of law by stating that mere death of an employee does not entitle his family to get compassionate appointment and the authority concerned must consider as to whether the family of the deceased employee is unable to meet financial crisis resulting from employee's death. He placed reliance on the judgment of the Hon'ble Supreme Court in the case of Umesh Kumar Nagpaljv. State of Haryana and others, (1994) 4 SCC 138. He also placed on the aforesaid issue as well as the judgment of the Hon'ble Supreme Court rendered in the case of Haryana State Electricity Board 8:. another v. Hakim Singh reported in Supreme Court Service Rulings, Vol.23, Page 757 in order to substantiate the point that the object of the provision for granting compassionate appointment should not be forgotten that it is to give succour to the family to tide over the financial crisis be fallen on the dependants on account of untimely demise of its sole earning member. Apart from the above, reliance was also placed on the judgment of the Hon'ble Supreme court in the case of Union of India 85 Ors. V. Bhagwan l / Singh reported in 1996(1) All India Services Law Journal, 100 in which the Hon'ble Supreme Court came to hold that compassionate appointment is only to help the family to meet with strained circumstances created by sudden death of a family member and a family of a deceased employee which has pulled on for 20 years can have no claim to such appointment. Learned counsel for the petitioners submits that in the present case while the death of the employee took place on 8.2_.1986, an application for appointment of opposite party no.1 was received by the petitioners only on 20.5.1998, clearly establishing that there was substantial delay in filing the application.
4. None appears for opposite parties at the time of call. In the light of the aforesaid submissions made by the learned for the petitioners, we find that While the principles relating to compassionate appointment have been settled by the Hon'ble Supreme Court in various judgments noted hereinabove, yet for the purpose of the present case and for a just decision of the matter, it is necessary to first 'go through the pleadings of the parties.
.5. From the pleadings of the present petitioners, it appear that opposite party no.l's father was a Group--D employee of the Kendriya Vidyalaya, Berhampur and died while in service on 8.2.1986. At the time of the death of the deceased employee namely, Narayan Ghadei, he left behind his widow Uma Ghadei, and a minor son (present O.P. no.1) and minor daughters. It is also clear from the pleadings that at the time of death of the father of opposite party no. 1, the said opposite party no.1 was a m_inor and since his date of birth being 10.7.1979, he was only six years old. ,
6. Apart from the aforesaid facts the stand of the petitioner- KVS in paragraph 9 of the writ petition is quoted herein:
"That it is humbly submitted that in accordance with the guidelines governing the filed if there is a ward below 18 years of age and who alone is available for employment then he should apply for a job as soon as he attains the age of 18 years."
From the aforesaid averments, it is clear that the guidelines of the petitioner-KVS contemplated accepting application from a "ward of the deceased employee" and if such ward was below 18 years at the time of employee's death it is permitted an application to be made by such a "ward", upon attaining the age of 18 years. Further, it is most important to note here that it is not disputed that the guidelines of the KVS apply to the case of present opposite party no.1 and no change by amendment of the same was brought to the notice of the Court in course of the hearing. Therefore, since opposite party no. 1--Jaya Sangram Keshari Ghadei was born on 10.7.1979, he became eligible' to apply for compassionate appointment only on his attaining 18 years on 9.7.1997, and therefore opposite party no.1 having made the application for compassionate appointment through his mother (wife of the deceased employee), on 20.5.1998, there has no delay in making of the application and there can be no justification in the plea of the petitioners that, there was delay in receiptvof the application of opposite party no.1. Therefore, the plea of delay raised by the petitioners in making the necessary application cannot be sustained.
7. A further plea of the petitionersiis that the "widow" of the deceased employee could have applied for compassionate appointment and since she has not made such application, no application on behalf of her minor son could be entertained. This plea as well cannot be sustained and the same deserves to be rejected. The guidelines relied upon by the petitioners clearly contemplate making of an application by a "ward" (below 18 years of age) obviously such an application can only be made once the "ward" becomes which is on his attaining the age of 18 years. The term "vvard" has been defined in the Concise Oxford English Dictionary, Tenth Edition published by Oxford University Press as "a child or young person under the care and control of a guardian appointed by their parents or a court". Obviously the term "Ward" cannot be extended to also cover a "Widow", (wife of the deceased employee). Apart from the same it would be important take judicial note of the fact that in various societies that exists in our country, woman may not come forward to accept public employment and therefore there can be no merit in a plea that since the widow did not come forward to seek appointment on the demise of her husband, such act of inaction on the part of the widow cannot obviously deprive a "Ward" of a deceased employee from making an application entitled to make the application ' permissible under the very guidelines of the KVS 'relied on by the petitioners. Therefore, this plea of the petitioners is also rejected.
8. V Amongst the various judgments cited by the petitioners on the issue of compassionate appointment,' the principles of law on compassionate appointments that evolve are that the purpose and object is to enable the family to get over sudden financial crisis and is based purely humanitarian condition. But when such purpose and object is sought to be achieved by "guide lines issued by the Government the petitioners-KVS, are bound by the same and no contention can be accepted for non-compliance with the said guidelines themselves. It is further important to note here that the petitioners have not sought to challenge their own guidelines. It is well settled principle of law that once an employer issues any "guidelines" to guide its future conduct with its employees, it is bound to comply with the same and cannot be allowed to raise questions against the said guidelines.
9. ' In this respect it becomes important also to take note of the case of Union of India 85 Ors v. Bhagwam Singh (supra). In the said case while the deceased employee had passed away in the year 1972, leaving behind his' widow, two major sons apart from two minor sons. One of thejminor sons on attaining majority in 1980/81 made an application for compassionate appointment. In the aforesaid case the Hon'ble Supreme Court recorded a finding that Rule--V of the relevant /rules stipulated that "all appointments on compassionate ground be made within a period of five years from the date of "occurrence of the eventiand, in no case, it would be more than 10 years from the death";
10 ' It is in consideration of the aforesaid rule, and the fact that the said deceased employee at the time of his death had two major sons apart from the minor, who made necessary application for appointment, came to hold that since there were two major sons at the time of the employee' s death apparently the family was capable of meeting their financial needs and only applied for a job on compassionate grounds after nearly 20 years and therefore the direction of the Tribunal to consider the case of the respondent for appointment on compassionate ground was found to be unlawful.
11. The facts 'of thecase at hand are clearly distinguishable from ' the aforesaid case. In the preset case the deceased employee had no major son at the time of his death. In the present case, no rule similar to the Rule--V of the Railway Rules exists and on the contrary the guidelines of the Sangathan contemplate / permit a mi-nor "ward" to make an application on his attaining 18 years of age. Accordingly, opposite party no. 1 has in fact made an application on his attaining 18 years of age and since there was no other major "ward" at the time of death of the deceased employee. Therefore, we find no error whatsoever in the direction of the Tribunal directing consideration of the case of opposite party no. 1 for compassionate appointment.
12. 4 A In View of the aforesaid finding reached by us, we find no merit in the present case, and dismiss the same we direct the petitioners- KVS to comply with the direction of the learned Central Administrative Tribunal within a period of three months from the date of receipt of copy of this order. Interim order dated 14.9.2004 passed in Misc. Case No. 2121 of 2003 stands Vacated. There shall be no order as to costs. L P < 3 pl , 3. MM/~oW'C/,J B.S. Chauhan,C.J. I agree .
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ORISSA HIGH COURT, CUTTACK ism March,2009 /AKDV