Full Judgment Text
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CASE NO.:
Appeal (civil) 6797 of 2003
PETITIONER:
STATE OF MANIPUR
RESPONDENT:
MD. RAJAODIN
DATE OF JUDGMENT: 28/08/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
JUDGMENT
2003 Supp(3) SCR 107
The Judgment of the Court was delivered by ARIJIT PASAYAT, J. Leave
granted.
Respondent was found to be entitled for appointment under the die-in-hamess
scheme, by a learned Single Judge of the Guwahati High Court at Imphal
Bench, whose view was endorsed by the Division Bench. The State of Manipur
is in appeal.
There is practically no controversy so far as the factual aspects are
concerned and, therefore, need to be noted in brief.
Respondent’s father died in harness on 19.7.1980. A writ petition (W.P. (C)
No. 1202/2001) was filed in the year 2001 by the respondent who pleaded
that he was initially offered Grade-IV post by order dated 15.12.1999; but
no appointment was made. The writ application was filed for direction to
the concerned authorities for giving appointment under the die-in-harness
scheme. The State resisted the claim on the ground that not only was the
claim belated but also in view of the ben imposed on appointments, the
question of making any appointment did not arise. Further the letter issued
was inconsequential as there was a clear stipulation in the scheme itself
about concurrence of Government in the Department of Personnel and
Administrative Reforms (Personnel Division).
Learned Single Judge of the High Court found that after having issued the
letter in 1999, the belated approach by the respondent cannot be a ground
for denying appointment under die-in-harness scheme and direction was given
to the State to forthwith appoint the respondent. Appeal by the State
before the Division Bench suffered dismissal.
In support of the appeal, learned counsel for the appellant-State submitted
that the respondent’s father died on 19.7.1980. The respondent applied for
a post on 25.7.1997. The scheme itself provides the time period within
which an application has to be filed. The letter dated 15.12.1999 does not
confer any right on the respondent as the scheme itself provided that the
appointment will be made by the appointing authority concerned after
clearance from Government of Manipur, Department of Personnel and
Administrative Reforms (Personnel Division). Admittedly, when no approval
has been given by the concerned department, the mere issuance of letter
does not confer any right particularly when the stipulation is contained in
the scheme itself, and there was a ban operating in respect of
appointments.
In response, learned counsel for the respondent submitted that within the
time period stipulated an application was filed in the year 1981, but there
was no response. Finding on other alternative the respondent who was a
minor at the time of his father’s death applied afresh and State cannot
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take plea that the benefit canot be extended.
The Government of Manipur, Department of Personnel and Administrative
Reforms (Personnel Division) issued Office Memorandum dated 2nd of May,
1984. Said office Memorandum deals with appointment of son/daughter/real
brother/real sister/wife/husband of Government servants who died in harness
leaving his/her family in indignant circumstances.
Admittedly, the respondent’s father died before the Office Memorandum came
into operation. In the memorandum a time period is stipulated. Since the
scheme itself was not in operation when the respondent’s father died, the
time stipulation as provided in the scheme would not be strictly applicable
to the case of the respondent and any one seeking for relief thereunder has
to at least move within the time stipulated commencing from the date of the
order. Nevertheless, keeping in view at any rate the object for which such
appointments which are also compassionate appointments are made the minimum
requirement is that the resquest for appointment should be made as
expeditiously as the circumstances warrant. It could not be brought to our
notice whether there was any scheme in operation prior to the scheme of
1984 referred to above. As the appointments of such nature envisaged under
the said scheme are made to tide over immediate difficulties, there is an
inbuilt requirement of urgency in making the application. Though it was
contended that the respondent was a minor at the time of his father’s
death, it is to be noted that he was of 10 years of age in 1980 when his
father died. Even if a responsible period after he attained majority is
taken, certainly the application on 25.7.1997 seeking appointment was
highly belated.
As was observed in the State of Haryana and Ors. v. Rani Devi & Anr., JT
[1996] SCC 6 646, it need not be pointed out that the claim of person
concerned for appointment on compassionate ground is based on the premises
that he was dependant on the deceased employee. Strictly this claim cannot
be upheld on the touchstone of Articles 14 or 16 of the Constitution of
India. However, such claim is considered as reasonable and permissible on
the basis of sudden crisis occurring in the family of such employee who has
served the State and dies while in service. That is why it is necessary for
the authorities to frame rules, regulations or to issue such administrative
orders which can stand the test of Articles 14 and 16. Appointment on
compassionate ground cannot be claimed as a matter of right. Die-in harness
scheme cannot be made applicable to all types of posts irrespective of the
nature of service rendered by the deceased employee. In Rani Devi’s case
(supra) it was held that scheme regarding appointment on compassionate
ground if extended to all types of casual or ad hoc employees including
those who worked as apprentices cannot be justified on constitutional
grounds. In Life Insurance Corporation of India v. Asha Ramchhandra Ambekar
(Mrs.) and Anr., [1994] 2 SCC 718, it was pointed out that High Courts and
Administrative Tribunals cannot confer benediction impelled by sympathetic
considerations to make appointments on compassionate grounds when the
regulations framed in respect thereof do not cover and contemplates such
appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and
Ors., [1994] 4 SCC 138, that as a rule in public service appointment could
be made strictly on the basis of open invitation of applications and merit.
The appointment on compassionate ground is not another source of
recruitment but merely an exception to the aforesaid requirement taking
into consideration the fact of the death of employee while in service
leaving his family without any means of livelihood. In such cases the
object is to enable the family to get over sudden financial crisis. But
such appointments on compassionate ground have to be made in accordance
with the rules, regulations or administrative instructions taking into
consideation the financial condition of the family of the deceased.
In Smt. Sushma Gosain and Ors. v. Union of India and Ors., [1989] 4 SCC
468, it was observed that in all claims of appointment on compassionate
grounds, there should not be any delay in appointment. The purpose of
providing appointment on compassionate ground is to mitigate the hardship
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due to death of the bread-earner in the family. Such appointments should,
therefore, be provided immediately to redeem the family in distress. The
fact that the ward was a minor at the time of death of the father is no
ground, unless the scheme itself envisage specifically otherwise, to state
that as and when such minor bcomes a major he can be appointed without any
time consciousness or limit. The above view was re-iterated in Phoolwati
(Smt.) v. Union of India and Ors., [1991] Supp. 2 SCC 689 and Union of
India and Ors. v. Bhagwan Singh, [1995] 6 SCC 476. In Director of Education
(Secondary) and Anr. v. Pushpendra Kumar and Ors., [1998] 5 SCC 192, it was
observed that in matter of compassionate appointment there cannot be
insistence for a particular post. Out of purely humanitarian consideration
and having regard to the fact that unless some source of livelihood is
provided the family would not be able to make both ends meet, provisions
are made for giving appointment to one of the dependants of the deceased
who may be eligible for appointment. Care has, however, to be taken that
provision for ground of compassionate employment which is in the nature of
an exception to the general provisions does not unduly interfere with the
right of those other persons who are eligible for appointment to seek
appointment against the post which would have been available, but for the
provision enabling appointment being made on compassionate grounds of the
dependant of the deceased employee. As it is in the nature of exception to
the geneal provisions it cannot substitute the provision to which it is an
exception and thereby nullify the main provision by taking away completely
the right conferred by the main provision.
In State of U.P. and Ors. v. Paras Nath, [1998] 2 SCC 412, it was held that
the purpose of providing employment to the dependant of a government
servant dying-in harness in preference to anybody else is to mitigate
hardship caused to the family of the deceased on account of his unexpected
death while in service. To alleviate the distress of the family, such
appointments are permissible on compassionate grounds provided there are
Rules providing for such appointments. None of these considerations can
operate when the application is made after a long period of time. In that
case also the delay was 17 years.
When case of the respondent is considered in the panorama of aforesaid
legal principles, the inevitable conclusion is that he was not entitled for
appointment. Even after 1984 scheme came into force, the application was
filed after a long lapse of time. He, therefore, had no right much less a
legal right to ask for an appointment. Learned Single Judge of the High
Court was not justified in directing the appellant to give appointment. It
is also on record that there was a ban on direct recruitment under Die-in-
harness scheme as is evidenced by Office Memorandum dated 24th July, 2001.
The scheme itself provided for a clearance from the Government in the
Department of Personnel and Administrative Reforms (Personnel Division).
We, therefore, set aside the orders of the Learned Single Judge and the
Division Bench. The appeal is allowed. However, this Judgment shall not
stand on the way of the appellant at its discretion giving effect to the
orders dated 15th December, 1999 at and from a future point of time, if
permissible, in accordance with law. Costs are made easy.