Jharkhand High Court
The State Of Jharkhand Through Its ... vs Navin Kumar Mandal on 18 October, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 237 of 2021
------
1.The State of Jharkhand through its Principal
Secretary, School Education and Literacy Department,
Government of Jharkhand, having office at Project
Building (MDI Building) P.O. and P.S. Dhurwa District
Ranchi.
2.The Deputy Commissioner-cum-Chairman, District
Education Establishment Committee, Godda, P.O. and
P.S. Godda, District Godda.
3.The District Superintendent of Education, Godda,
P.O. and P.S. Godda, District Godda.
.......... Respondents/Appellants
Versus
Navin Kumar Mandal, aged about 27 years, Son of
Late Ramdayal Mandal, resident of Village Pargodih,
P.O. Susni, P.S. Deodaad, District Godda.
..... Petitioner/Respondent
----
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
-----
For the Appellants : Mr. Devesh Krishna, S.C. (Mines) III
For the Respondent : Mr. Manoj Tandon, Advocate
Ms. Sneha Kumari, Advocate
Ms. Neha Bhardwaj, Advocate
Ms. Akansha Priya, Advocate
-------
C.A.V on 30.08.2022 Pronounced on 18/10/2022
Per Sujit Narayan Prasad, J.:
I.A. No. 3803 of 2021
Perused the Office Note.
It has been reported that in view of order dated 27.04.2021 passed by Hon'ble Supreme Court in Miscellaneous Application No. 665 of 2021 in Suo Moto 2 Writ Civil No. 03 of 2020, the instant appeal is filed within time.
Ordered accordingly.
Interlocutory Application being I.A. No. 3803 of 2021 stands disposed of.
L.P.A. No. 237 of 2021
The instant intra-court appeal, under clause 10 of the Letters Patent, has been preferred by the respondents-State of Jharkhand (appellants herein) against the order/judgment dated 03.03.2021 passed by learned Single Judge of this Court in W.P. (S) No. 2042 of 2020, whereby and whereunder order dated 03.06.2020, by which communication was made to the petitioner that he has been reverted from the post of teacher to the post of clerk; and order dated 20.06.2020 by which the District Superintendent of Education, Godda has relieved the petitioner to join the office of District Superintendent of Education, Godda, have been quashed and set aside; and it has been held that the petitioner shall be allowed to work on the post of teacher with all consequential benefits in view of decision of Establishment Committee taken on earlier occasion.
3
2. The brief facts of the case, as per the pleading made in the writ petition, which are required to be enumerated, read as under:-
The father of the petitioner, while working as teacher in Primary School Baghmara (Purab Tola), Godda, died in harness on 16.02.2015. The petitioner passed Matriculation with 76% marks and Intermediate with 60.5% marks and completed Teachers Training course from Bihar School Examination Board.
Thereafter, the petitioner appeared in Jharkhand Teachers Eligibility Test (JTET) and passed the said examination.
The petitioner, after death of his father in harness, submitted application for appointment on compassionate ground on 19.04.2018, appended as Annexure 7 to the writ petition, before the respondents-
authority. The case of the petitioner was placed before the District Compassionate Committee, Godda, which recommended the appointment of the petitioner on compassionate ground on the post of teacher.
Accordingly, appointment letter was issued to the petitioner vide Memo No. 1002 dated 23.07.2018. The petitioner submitted his joining report on the next 4 following date i.e., on 24.07.2018 and started to discharge his duty as teacher.
It is the case of the petitioner that all of a sudden, vide Memo No. 1557 dated 01.11.2019, the salary of the petitioner was stopped with immediate effect on the ground that the case of the petitioner was again placed before the District Compassionate Committee, Godda in view of guidelines dated 01.12.2015 as the petitioner was required to be appointed on compassionate ground on the post of Clerk and not to the post of teacher.
It is further case of the petitioner that finally decision was taken vide Memo No. 754 dated 03.06.2020 by which the petitioner was communicated that he has been reverted from the post of teacher to the post of clerk. Thereafter, vide Memo No. 828 dated 20.06.2020, the District Superintendent of Education relieved the petitioner to join the office of District Education Officer, Godda as Clerk.
The petitioner, being aggrieved with the order of reversal from the post of teacher to the post of Clerk as contained in Memo No. 754 dated 03.06.2020 and order of relieving as contained in Memo No. 828 dated 20.06.2020, by which the petitioner was relieved to join 5 the post of Clerk, approached this Court invoking its writ jurisdiction.
Before the writ Court, the petitioner took ground that in the light of two resolutions i.e., Resolution as contained in Memo No. 129 dated 16.01.2008 and its amendment as contained in Memo No. 945 dated 09.05.2013, the writ petitioner is fulfilling the criteria for appointment on compassionate ground and in the light of policy decision contained therein, the case of the writ petitioner was considered by the District Compassionate Committee, Godda and accordingly appointment letter was issued for appointment on the post of Assistant Teacher. Accordingly, he joined the said post but the respondents-authority again placed the matter before the District Compassionate Committee for re-consideration of his case on the basis of policy decision as contained in Memo No. 10167 dated 01.12.2015, wherein decision was taken to revert the petitioner from the post of Assistant Teacher to the post of Clerk and accordingly, he was relieved to join the said post.
Further contention has been raised before the learned writ Court that such decision ought not to have been taken by the respondents-authority in view of the 6 fact that the writ petitioner possesses all the requisite qualification/criteria, as per circular/guideline in-vogue on the date when the father of the writ petitioner died in harness.
It was further contented that even otherwise also the policy decision of the State Government as contained in Memo No. 10167 dated 01.12.2015 is not applicable in the case of the petitioner as father of the writ petitioner died on 16.02.2015 i.e., much prior to coming into force of policy decision as contained in Memo No. 10167 dated 01.12.2015 and as such it cannot be applied retrospectively for taking adverse decision.
While on the other hand, the respondents-State defended the order passed by the respondents- authorities taking the ground that while the application of the petitioner was being considered, new rule by way of policy decision as contained in Memo No. 10167 dated 01.12.2015 was already in vogue and when such mistake was pointed out, the District Compassionate Committee again examined the decision and reverted the petitioner to the post of Clerk in the light of circular dated 01.12.2015.
7
The learned Single Judge, on appreciation of the rival submissions advanced on behalf of parties, allowed the writ petition on the ground that the impugned decision which has been taken on consideration of the policy decision of the State Government as contained in letter dated 01.12.2015, will not apply retrospectively as father of the writ petitioner died on 16.02.2015 and at that time the resolution dated 16.01.2008 and its amendment as contained in Memo No. 945 dated 09.05.2013 were in force and these two resolutions are meant especially for Human Resources Department whereas circular dated 01.12.2015 is general. Therefore, the decision taken in pursuance to general policy decision, as contained in letter dated 01.12.2015, will not prevail upon the policy decision of the State Government taken only for consideration of case of appointment on compassionate ground pertaining to demise of bread earner working in the education department of the State Government, which is the subject matter of instant intra court appeal.
3. Mr. Devesh Krishna, learned S.C. (Mines) III appearing for the appellants-State of Jharkhand has raised following issues:
8
(I).The learned Single Judge has failed to appreciate the applicability of provisions of policy decision as contained in Memo No. 10167 dated 01.12.2015 in right prospective holding that such rule cannot be given retrospective application since herein the aforesaid policy decision has come into force on 01.12.2015 while the death of the father of the petitioner took place on 16.02.2015. While coming to such conclusion about non-applicability of the aforesaid circular dated 01.12.2015 with retrospective effect, the learned Single Judge has failed to appreciate that there is no question of giving retrospective application of the policy decision notified on 01.12.2015 in the facts of the case since consideration is to be made about applicability of scheme/rule pertaining to appointment on compassionate ground on the basis of date when the application for appointment on compassionate ground has been made.
In the case in hand, the application for appointment on compassionate ground was made by the writ petitioner 19.04.2018 only after coming into force of the policy decision of the State Government on 01.12.2015, therefore, the appointment on 9 compassionate ground is required to be made on the basis of policy decision dated 01.12.2015.
Further, in the aforesaid policy decision dated 01.12.2015 there is no provision to appoint the dependent of the bread earner on compassionate ground to the post of Assistant Primary Teacher, as would appear from clause 8 thereof, rather the rule provides that appointment on compassionate ground will only be provided in Grade C or Grade D posts with specific pay-scale but the writ petitioner since has been provided appointment on compassionate ground to the post of Assistant Primary Teacher, the same cannot be said to be proper in the light of policy decision notified by the State Government vide letter dated 01.12.2015. (II).The learned Single Judge has also failed to appreciate the fact about applicability of resolution dated 16.01.2008 and subsequent resolution as notified by way of amendment dated 09.05.2013, appended as Annexure 1 and 2 of the writ petition respectively. Although the said circulars provide that the appointment is to be made to the dependent of the bereaved family due to sudden demise of the bread earner who was working as teacher to the post of Assistant Primary Teacher but the aforesaid circular 10 cannot be said to be in existence after coming into effect of the rule notified by the State Government through the Personnel, Administrative Reforms and Rajbhasha Department on 01.12.2015 and, therefore, the learned Single Judge has come to an incorrect finding by holding in the impugned order that it is the resolutions of the State Government dated 16.01.2008 and 09.05.2013, appended as Annexure 1 and 2 of the writ petition respectively, which are applicable in the case of the petitioner and hence the order impugned is not sustainable in the eyes of law.
The learned State counsel, in order to buttress his argument, about applicability of the policy decision as to whether the policy decision which was in-vogue at the time of death of the bread earner or at the time of making of application for compassionate appointment is to be considered, has relied upon the judgment rendered in N.C. Santhosh Vs. State of Karnataka & Ors [(2020) 7 SCC 617] by the Hon'ble Supreme Court.
4. Per contra, Mr. Manoj Tandon, learned counsel appearing for the respondent-writ petitioner has defended the order passed by learned Single Judge taking the plea that the learned Single Judge has not erred in passing the impugned order reason being that 11 the resolution/policy decision which was in-vogue on the date of death of bread earner will be considered and the circulars on the date of death of the father of the writ petitioner in-vogue were resolutions dated 16.01.2008 and 09.05.2013, appended as Annexure 1 and 2 to the writ petition respectively, which provide that appointment on compassionate ground can be made to the post of Assistant Primary Teacher.
Therefore, the learned Single Judge, taking into consideration this aspect of the matter, has come to the conclusion about applicability of the policy decision dated 16.01.2008 and 09.05.2013, appended as Annexure 1 and 2 to the writ petition respectively, in the case of the petitioner.
Learned counsel, rebutting the argument advanced on behalf of respondents-State to the effect that the policy decision in-vogue on the date of submission of application will be applicable, has submitted that it is incorrect argument rather the position of law is well settled that the policy decision in- vogue at the time of death of the employee, who died in harness, will only be applicable.
In order to strengthen his argument, he has relied upon the judgment rendered by Hon'ble Apex 12 Court in State of Madhya Pradesh & Ors Vs. Ashish Awasthi [(2021) SCC OnLine 1084].
The learned counsel in the backdrop of these facts and judicial pronouncement has defended the order passed by learned Single Judge and has prayed to dismiss the instant appeal.
5. We have heard learned counsel for the parties and perused the documents available on record as also the finding recorded by learned Single Judge in the impugned order.
6. This Court, on the basis of argument advanced on behalf of parties is required to answer as to whether rule/policy decision notified vide letter dated 01.12.2015 will be applicable as per judgment rendered in N.C. Santhosh (supra) or as per resolution dated 16.01.2008 and subsequent circular notified by way of amendment dated 09.05.2013, appended as Annexure 1 and 2 of the writ petition respectively, as per the judgment rendered in State of Madhya Pradesh & Ors Vs. Ashish Awasthi (supra) will be applicable, while considering his case for appointment on compassionate ground?
13
7. This Court, therefore, is proceeding to examine the ratio laid down by the Hon'ble Apex Court in both the judgments.
This Court has first considered the judgment rendered by Hon'ble Apex Court in the case of N.C. Santhosh (supra) which is the judgment delivered by the Hon'ble Division Bench comprising three-judges, wherein the issue fell for consideration which law will be applicable governing the field of appointment on compassionate ground, as would appear from paragraph 19 wherein opinion has been expressed that the rule prevailing on the date of consideration of application should be the basis for consideration of claim for appointment on compassionate ground.
For ready reference paragraph 19 of the judgment is quoted hereunder as:
"19. Applying the law governing compassionate appointment culled out from the abovecited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependant of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is, however, disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee."
Emphasis Supplied 14 The judgment of the Hon'ble Apex Court rendered in State of Madhya Pradesh & Ors Vs. Ashish Awasthi (supra) upon which reliance has been placed on behalf of writ petitioner has been delivered by the Division Bench of Hon'ble Supreme Court comprising two-judges, wherein at paragraph 6 it has been held that the policy decision prevailing at the time of death of deceased-employee for appointment on compassionate ground is required to be considered and not the subsequent one.
For ready reference paragraph 6 of the judgment is quoted hereunder as:
"6. In Indian Bank v. Promila [Indian Bank v. Promila, (2020) 2 SCC 729 : (2020) 1 SCC (L&S) 312] , it is observed and held that claim for compassionate appointment must be decided only on the basis of relevant scheme prevalent on date of demise of the employee and subsequent scheme cannot be looked into. Similar view has been taken by this Court in State of M.P. v. Amit Shrivas [State of M.P. v. Amit Shrivas, (2020) 10 SCC 496 : (2021) 1 SCC (L&S) 68] . It is required to be noted that in Amit Shrivas [State of M.P. v. Amit Shrivas, (2020) 10 SCC 496 : (2021) 1 SCC (L&S) 68] the very scheme applicable in the present case was under consideration and it was held that the scheme prevalent on the date of death of the deceased employee is only to be considered. In that view of the matter, the impugned judgment and order [Ashish Awasthi v. State of M.P., 2018 SCC OnLine MP 1824] passed by the Division Bench is unsustainable and deserves to be quashed and set aside." [Emphasis supplied]
8. This Court, therefore, is required to consider about the applicability of the rule on the basis of 15 principle laid down by the Hon'ble Apex Court by considering the binding effect of the judgment, as to whether the judgment rendered by Division Bench of the Hon'ble Apex Court comprising three-judges in the case of N.C. Santhosh (supra) will have binding effect or the judgment rendered by the Hon'ble Division Bench comprising two-judges as rendered in the case of State of Madhya Pradesh & Ors Vs. Ashish Awasthi (supra) will have binding effect.
9. Position of law is well settled, as per the law laid down by Hon'ble Apex Court in the judgment rendered in Official Liquidator vs. Dayanand & Ors [(2008) 10 SCC 1], so far basics of judicial discipline is concerned wherein law has been laid down that discipline is sine qua non for effective and efficient functioning of the judicial system.
For ready reference, the relevant paragraph nos. 90 and 91 of the judgment is quoted as under:
"90.We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages 16 chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.
91.We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law."
The Hon'ble Apex Court further in the judgment rendered in Subhash Chandra & Anr Vs. Delhi Subordinate Services Selection Board & Ors [(2009) 15 SCC 458] has held at paragraph 96 as under:
"96. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. In S. Pushpa [(2005) 3 SCC 1 : 2005 SCC (L&S) 327] , decisions of the Constitution Benches of this Court in Milind [(2001) 1 SCC 4 : 2001 SCC (L&S) 117] had not been 17 taken into consideration. Although Chinnaiah [(2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329] was decided later on, we are bound by the same. It is now a well-settled principle of law that a Division Bench, in case of conflict between a decision of a Division Bench of two Judges and a decision of a larger Bench and in particular Constitution Bench, would be bound by the latter. (See Sardar Associates v. Punjab & Sind Bank [(2009) 8 SCC 257] .)"
In view thereof, following the judgment rendered by the Hon'ble Supreme Court in the case of N.C. Santhosh (supra) wherein it has laid down as under
paragraph 19 that the rule prevailing on the date of consideration of the application is to be made applicable and admittedly in the case in hand the father of the petitioner died on 16.02.2015 and the application for appointment on compassionate ground has been filed on 19.04.2018 which is subsequent to the policy decision of the State notified vide letter dated 01.12.2015, therefore, we are of the considered view that the provision as contained under policy decision as contained in policy decision dated 01.12.2015 will be applicable in the facts and circumstances of the given case.
10. This Court, having answered the issue about the applicability of the rule by considering the judgment rendered in the case of N.C. Santhosh (supra), wherefrom it is evident that the rule will be applicable 18 on the basis of date of application made for appointment on compassionate ground, has gone across the rule which was notified on 01.12.2015, wherefrom it is evident that in the said rule there is no provision to provide appointment on compassionate ground to the post of Assistant Primary Teacher, as would appear from rule 8 thereof, which reads as under:
¼8½ vuqdEik ds vk/kkj ij fu;qfDr fdu inksa ij gks ldrh gS \ vuqdEik ds vk/kkj ij fu;qfDr osrueku PB-I, 5200&20200] xzsM osru 1800@1900 rd lewg ^x* ds lHkh izdkj ds inksa ij rFkk lewg ^?k* ds vf/kdre 1800 xzsM osru rd ds lHkh izdkj ds inksa ij dh tk ldrh gSA ijUrq ;fn ljdkjh lsod dh e`R;q dh frfFk dks ifr ;k iRuh ¼tks Hkh ykxw gks½ ljdkjh lsok esa gks]a rks e`r ljdkjh lsod ds vkfJr dks vuqdEik dk ykHk vuqekU; ugha gksxkA fdUrq ifr vkSj iRuh nksuksa ljdkjh lsok esa jgs gksa vkSj muesa ls fdlh ,d ljdkjh lsod dh e`R;q@lsokfuo`fÙk iwoZ esa gks x;h gks rks lsokdky esa e`r ljdkjh lsod ds vkfJr dks vuqdEik dk ykHk ns; gksxkA ^^ijUrq ;g vkSj fd ljdkjh lsod ds lsokfuo`fÙk ds ckn iqufuZ;kstu vFkok lafonk ds vk/kkj ij dk;Zjr dehZ ds e`R;q ds mijkUr vuqdEik ds vk/kkj ij fu;qfDr dk nkok ekU; ugha gksxk**A It is evident from rule 8 of policy decision dated 01.12.2015 that appointment on compassionate ground can be made in PB-1 Scale of Rs. 5200-20200 with Grade Pay 1800/1900 so far Group C posts are concerned and in Grade D posts, it can be offered with maximum Grade Pay of Rs. 1800.19
11. The District Compassionate Committee in its meeting dated 30.04.2020 taking into consideration rule 8 of notification dated 01.12.2015 has reverted the petitioner to the post of Clerk in Pay Band-I with Grade Pay of Rs. 1900 in Group C post, which cannot be said to be suffer from an error in view of the fact that the writ petitioner has been provided appointment on compassionate ground on the basis of policy decision dated 01.12.2015 of the Personnel, Administrative Reforms and Rajbhasha Department, State of Jharkhand which was prevalent on the date of submission of application for appointment on compassionate ground and as per the law laid down by Hon'ble Supreme Court in the case of N.C. Santhosh (supra).
12. This Court also deems it fit and proper to consider herein the very object and intent of appointment on compassionate ground in case of death of deceased-employee, as has been considered by Hon'ble Apex Court in the judgment rendered in Director of Treasuries in Karnataka and Anr. Vs. V. Somyashree, [2021 SCC OnLine 704], wherein the principle governing the ground of appointment on compassionate ground has been considered taking into 20 consideration the judgment by Hon'ble Apex Court in N.C. Santhosh (supra) summarizing the principle governing the ground for appointment on compassionate ground as under:
(i).That the compassionate appointment is an exception to the general rule;
(ii).That no aspirant has a right to compassionate appointment;
(iii).The appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;
(iv).Appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy;
(v).The norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.
The Hon'ble Apex Court in the judgment rendered in State of Himachal Pradesh & Anr. Vs Shashi Kumar [(2019) 3 SCC 653] had an occasion to consider the object and intent of appointment on compassionate ground and considering the judgment rendered by Hon'ble Apex Court in Govind Prakash Verma Vs. LIC [(2005) 10 SCC 289], at paragraph 21 and 26 it has been held as under:
"21. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by 21 this Court in Umesh Kumar Nagpal v. State of Haryana [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930] . The principles which have been laid down in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930] have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract: (Umesh Kumar Nagpal case [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930] , SCC pp. 139-40, para 2) "2. ... 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 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 22 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."
26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [Mumtaz Yunus Mulani v. State of Maharashtra, (2008) 11 SCC 384 : (2008) 2 SCC (L&S) 1077] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case.
The Hon'ble Apex Court recently in the case of Fertilizers and Chemicals Travancore Ltd. & Ors. 23 vs. Anusree K.B. passed in Civil Appeal No. 6958 of 2022 dated 30.09.2022, taking into consideration the judgment rendered in Director of Treasuries in Karnata & Anr. Vs. V. Somyashree (supra), N.C. Santhosh (supra), State of Himachal Pradesh & Anr. Vs. Shashi Kumar (Supra) and Govind Prakash Verma Vs. LIC (Supra) has been pleased to hold as under paragraph 9 thereof that compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness leaving his family in penury and without any means of livelihood.
For ready reference, paragraph 9 of the judgment rendered in Fertilizers and Chemicals Travancore Ltd (supra) is quoted as under:
"9. Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and 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 24 sudden crisis. The object is not to give such family a post much less a post held by the deceased.
9.1 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the respondent shall not be entitled to the appointment on compassionate ground on the death of her father, 10 who died in the year 1995. After a period of 24 years from the death of the deceased employee, the respondent shall not be entitled to the appointment on compassionate ground. If such an appointment is made now and/or after a period of 14/24 years, the same shall be against the object and purpose for which the appointment on compassionate ground is provided. 9.2 Under the circumstances, both, the learned Single Judge as well as the Division Bench of the High Court have committed a serious error in directing the appellants to reconsider the case of the respondent for appointment on compassionate ground. The impugned judgment and order passed by the High Court is unsustainable."
In the instant case, it is not the case of the petitioner that he has not been provided appointment on compassionate ground rather the appointment has been provided to the post of Clerk but the writ petitioner is willing for consideration of his case to the post of Assistant Teacher meaning thereby the petitioner is making claim for appointment to the post of his choice, which cannot be said to be proper approach of the petitioner since appointment on compassionate ground does not vest any right to claim 25 appointment rather it is exception and in the teeth of Article 14 and 16 of the Constitution of India.
However, such exception has been carved out to meet out the situation of the bereaved family living in penury due to sudden demise of the bread earner.
Therefore, according to our considered view, on this ground also, the claim which is being made by the writ petitioner for his appointment to the post of Assistant Teacher cannot be said to be proper and justified; otherwise providing appointment on compassionate ground on the choice of the dependant of the deceased employee will be contrary to the policy for filling up of the public post.
13. But the learned Single Judge taking contrary view has quashed the impugned order on the ground that rule notified on 01.12.2015 cannot have its retrospective effect since the rule has been notified on 01.12.2015 while the death of the father of the petitioner occurred on 16.02.2015 and affirmed the decision of the administrative authority which has been taken on the basis of policy decision notified vide letter dated 16.01.2008 and subsequent circular notified by way of amendment dated 09.05.2013, which according to our considered view, as per discussions made 26 hereinabove and law laid down by Hon'ble Apex Court in N.C. Santosh (supra), suffers from error and requires interference by this Court.
14. Accordingly, the order dated 03.03.2021 passed by learned Single Judge in W.P. (S) No. 2042 of 2020 is quashed and set aside.
15. In the result, the writ petition stands dismissed.
16. The instant intra court appeal stands allowed.
(Dr. Ravi Ranjan, C.J.) I agree (Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Alankar/ -
A.F.R.