Himachal Pradesh High Court
Netar Singh vs State Of Himachal Pradesh & Others on 16 September, 2020
Bench: L. Narayana Swamy, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 3655 of 2020-F .
Date of Decision: September 16, 2020
Netar Singh ...Petitioner
Versus
State of Himachal Pradesh & others ...Respondents
Coram:
The Hon'ble Mr. Justice L. Narayana Swamy, Chief Justice. The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No. For the petitioner : Mr. A.K. Gupta, Advocate. For the respondent : Mr. Ashok Sharma, Advocate General with Ms. Ritta Goswami & Mr. Adarsh Sharma, Addl.AGs.
COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE Per: Anoop Chitkara, Judge(oral) After twenty-eight years of the death of his father, who while working on daily wages lost his life, the petitioner, who at that time was just one year of age, and is now aged 29 years, has come up before this Court seeking a mandamus against the State of HP, directing to consider him for compassionate appointment.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 18/09/2020 20:18:01 :::HCHP 22. The contentions of the petitioner are that his father was serving on daily wage basis in the Forest Department w.e.f.
.
1.04.1986 and on 1.12.1991 i.e. after five years and eight months of service, while on duty, a stone hit him leading to his death. At that time, the petitioner was just one year of age. At that stage the officials of the Forest Department assured his mother and grand-mother that when their son would attain the age of 18 years, then he would be given job in the Department.
On attaining the age of majority, the petitioner not only met the officials of the Forest Department but also made number of written applications. However, the respondents did not adhere to any such request.
3. Feeling aggrieved, on 30th March, 2019, the petitioner sent a representation to the Labour Inspector, Nahan, requesting him to direct the Forest Department to give him compensatory appointment. In the representation, he further contended that the claim of death be also provided to the family.
4. On not getting any response from the Labour Inspector, the petitioner has filed the present writ petition before this Court ::: Downloaded on - 18/09/2020 20:18:01 :::HCHP 3 seeking a direction to the respondents to consider his case for compassionate appointment.
.
5. We have heard learned counsel for the parties and gone through the case file.
6. Without adjudicating the legal position as to whether the dependents of a daily waged employee, who dies in harness, are entitled for compassionate appointment or not, the claim made in the present matter is stale for the reason that the petitioner had attained majority eleven years ago. Despite that the only representation/claim which he has placed on record is dated 30.3.2019 (Annexure P-1). The pleadings are absolutely silent with regard to the attempts made by him as alleged in his representation/claim (Annexure P-1). On the face of it the claim is stale.
7. Even otherwise, the purpose of a compassionate appointment is to relieve unexpected immediate hardship and distress caused to the family on the sudden death of the earning member of a family.
8. It would be appropriate to refer to the judicial precedents on the issue:
::: Downloaded on - 18/09/2020 20:18:01 :::HCHP 4(a) In Umesh Kumar Nagpal vs. State of Haryana & others, (1994) 4 SCC 138 the Supreme Court holds as .
follows:-.
"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 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 ::: Downloaded on - 18/09/2020 20:18:01 :::HCHP 5 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.
3. Unmindful of this legal position, some governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible.
4. It is for these reasons that we have not been in a position to appreciate judgments of some of the High courts which have justified and even directed compassionate employment either as a matter of course or in posts above Classes III and IV. We are also dismayed to find that the decision of this court in Sushma Gosain v. Union of India, (1989) 4 SCC 468, has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above Classes III and IV." ...
(b) In Jagdish Prasad vs. State of Bihar & another, (1996) 1 SCC 301, the Supreme Court holds as follows:
"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 ::: Downloaded on - 18/09/2020 20:18:01 :::HCHP 6 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."
(c) In MGB Gramin Bank vs. Chakrawarti Singh, (2014) 13 SCC 583 the Supreme Court holds as follows:
"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 bread-earner. 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 & Ors., (1994) 4 SCC 138, this Court has considered the nature of the right which a dependant can claim while seeking ::: Downloaded on - 18/09/2020 20:18:01 :::HCHP 7 employment on compassionate ground. The Court observed as under:
"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 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.
9. 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.
10. In A. Umarani v Registrar, Co-operative Societies & Ors., (2004) 7 SCC 112, while dealing with the issue, this Court held that even the Supreme Court should not exercise the extraordinary jurisdiction under Article 142 issuing a direction to give compassionate appointment in contravention of the provisions of the Scheme/Rules etc., as the provisions have to be complied with mandatorily and any appointment given or ordered to be given in violation of the scheme would be illegal.
::: Downloaded on - 18/09/2020 20:18:01 :::HCHP 811. The word 'vested' is defined in Black's Law Dictionary (6th Edition) at page 1563, as "Vested-, Fixed; accrued; settled; absolute;
.
complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights."
12. In Webster's Comprehensive Dictionary (International Edition) at page 1397, 'vested' is defined as Law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest. Bibi Sayeeda v State of Bihar, (1996) 9 SCC 516; and J.S. Yadav v State of Uttar Pradesh, (2011) 6 SCC 570.
13. Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/ scheme could be changed. (Vide: Kuldip Singh v Government, NCT Delhi, (2006) 5 SCC 702)
14. A scheme containing an in pari materia clause, as is involved in this case was considered by this Court in State Bank of India & Anr. vs. Raj Kumar, 2010 11 SCC 661. Clause 14 of the said Scheme is verbatim to clause 14 of the scheme involved herein, which reads as under:
"14. Date of effect of the scheme and disposal of pending applications: The Scheme will come into force with effect from the date it is approved by the Board of Directors. Applications pending under the Compassionate Appointment Scheme as on the date on which this new Scheme is approved by the Board will be dealt with in accordance with Scheme for payment of ex-gratia lump sum amount provided they fulfill all the terms and conditions of this scheme."::: Downloaded on - 18/09/2020 20:18:01 :::HCHP 9
15. The Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment on compassionate ground may not be claimed as .
a matter of right nor an applicant becomes entitled automatically for appointment, rather it depends on various other circumstances i.e. eligibility and financial conditions of the family, etc., the application has to be considered in accordance with the scheme. In case the Scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the cause of action had arisen i.e. death of the incumbent on the post. In State Bank of India & Anr. vs. Raj Kumar, (2010) 11 SCC 661 , this Court held that in such a situation, the case under the new Scheme has to be considered.
16. In view of the above position, the reasoning given by the learned Single Judge as well as by the Division Bench is not sustainable in the eyes of law. The appeal is allowed and the impugned judgments of the High Court are set aside."
9. Given above observations, the present writ petition is dismissed. Pending application(s), if any, are closed.
No order as to costs.
(L. Narayana Swamy), Chief Justice.
(Anoop Chitkara), Judge.
September 16 , 2020 (PK)
::: Downloaded on - 18/09/2020 20:18:01 :::HCHP