AE/K/ \ HIGH COURT OF CHHATTISGARH AT BILASPUR‘ Virendré Kumar Katakwar " W.P. ls) No.6156 OF 2008 PETITI ONER RESPONDENTS State of Chhattisgarh and others ORDER Pos'r ON LovimVEMBER zoos Sd/- 1 Dhirendra Mishra‘ Judge q Q‘l‘ii2665 @ l HIGH COIjRT OF CHHATTISGARH AT BILASPUR W.P. {s} No.6156 OF 2008 PETITIONER : ‘Virendra Kumar Katakwar, aged- 22 years, S/o Late D.P. Katakwar, R/o Chitki Gali, Near Chhote Masjid, Sarangarh, . District Raigarh (CG) Vs RESPONDENTS 1. State Of Chhattisgarh, through the Secretary, Public Health and Family Welfare Department, DKS Bhawan, Raipur (CG) O R D E R (Passed on 1QfNovember, 2008) Dhirendra Mishra, J The petitioner is aggrieved by Memo dated 7.8.2008 (Annexure P/4), by which Directorate, Health Services, respondent No.2 herein, has refused him compassionate appointment on the ground that as per Compassionate Appointment Rules dated 10thlJune, 2003 and Circular dated 2nd January, 2006, the cases for compassionate appointment of dependents of the deceased government employees, who died between 1.11.197 and 31.10.2000, are to be considered. Learned counsel for the petitioner contended that father of the petitioner late Shri D.P..Katakwar died on 20th April, 1997 while working as Health Assistant in 9 2. The Director, Health Services, Chhattisgarh, H.Q.—Raipur (CG) 3. ‘The Chief Medical 85 Health Officer, Raigarh, District-Raigarh (CG) Present: Shri R.K. Kesharwani, : For the petitioner. Advocate Shri Y.S. Thakur, For the State. Dy. Advocate General « the Primary Health Center, Vijay 'Nagar, Block- Dharamjaigarh, Distt. Raigarh. At the time of his death his dependents, the petitioner and his younger sister, were minor and mother of the petitioner was illiterate, therefore, at that time, the petitioner could not apply for compassionate appointment. After attaining majority and completing education up to Higher Secondary, he applied for compassionate appointment. Respondent No.2 Vide Memo dated 24.9.2007 (Annexure P/l) sought his consent for compassionate appointment on the post of Shikshakarmi Grade-III, whereupon the petitioner submitted his consent letter on 5.10.2007 (Annexure P/2). He also addressed a reminder for compassionate appointment Vide Annexure P/3. However, respondent No. 2 Vide impugned order refused compassionate appointment on the ground mentioned above. It is further contended that Circular of Annexure P/5 dated 10th June, 2003 was not applicable in the case of the petitioner ‘and case of the petitioner ought to have been considered in the light of Circular dated 1.5.2000, issued by the erstwhile State of M.P. regarding compassionate appointment to the minor dependents of the deceasedgovernment employee, which was subsequently amended Vide Circular dated 15.12.2000, whereby the cases for compassionate appointment of the minor dependents could be considered up to five years from the date of death of the government employee _vide Annexure P/6. Reliance is placed on the judgment in the matter of Abhishek Kumar Vs. State of Haryana and othersl. Heard learned counsel for the petitioner. It is not in dispute that petitioner’s father died o 20th April, 1997 Whereas as per Circular of the State 1 2007‘STPL (LE) 38322 sc n ‘ Govt. dated 10th June, 2003, the ,State of Chhattisgar reviewing its earlier decision dated 28/29th June, 2002, issued certain guidelines that cases of compassionate appointment of dependents of the deceased goverment employees, who died betwee lst November, 197 and 31“ October, 2000, would be considere Vide Circular dated 1.5.2000,’ the Stae of M.P. had etended relaxation of hree years to the dependents, Who we minor at the time of death of the government employee, for providing employment n compassona round. The above circular was furher amended Vide Crcular dated 15th December, 2000 and the period three years was extended to fi years for grat of compassionate appointment. It was alo mntioned in the said rcular, that in case there is no vacant post available after the death of the deceased government employee up to five years, then the eligibility for mpassionate appointment shall cease. In the matter of Abhishek Kumarl, the dependent d sought compasonate appointment at oin f time the Rules, 20 we in existence nd therefore, it was held that his case ought to have bee considered in t terms f rules, which wer in existence in the year 2001. Statewise list was intained and in terms of the Statewise list maintained by the State of Haryana, the appellant was entitled to obtained appointment on compassionate ground. He was appointment by the State. However, the Magistrate refused to provide the post. In the instant case, there is nothing on record to suggest that the petitioner applied for compassionate appointment within five years after the death of his father up to 20th April, 2002. Claim of the petitioner is based on the Memo dated 24.9.2007 of Annexure P/l, which only mentions that the application of the offered such District n n 9 d. t x t er o ite g t i of ve n s e ci co ha si a pt o 03 re a n he o e ma petitioner for compassionate appointment for Class-III post was received through proper channel, since no post of Class—III is vacant in the district, his case was to be forwarded to the concerned Collector for consideration of his appointment on the post of Shikshakarmi Grade- III on compassionate ground and his consent was sought in this regard. In the matter of State of J & K and others Vs. Sajad Ahmed Mir2, father of the dependent died’on xi ' 6.3.1987 while in service, the dependent applied for compassionate appointment on 20th September, 1991; his case was forwarded with recommendation in the year 1993 to give him compassionate appointment; it was also recommended to appoint the applicant after relaxation of qualification as well as in age. However, the dependent was finally apprised on 8.6.1999 that his request for compassionate appointment cannot be acceded to and no appointment can be given to him. The dependent then filed a writ petition against refusal of compassionate appointment. The learned Single Judge dismissed the petition. The dependent then approached the Division Bench by way of filing Letters Patent Appeal. The appeal was allowed and accordingly, he was held entitled to compassionate appointment in terms of the rules ,and regulations which were in existence before coming into force of the 1994 Rules and a direction was issued to consider the case of the applicant and to take decision within a period of six weeks. The Hon’ble Supreme Court allowing the civil appeal preferred by the State of J 85 K set aside the order passed by the Division Bench and restored the order of the learned Single Judge observing thus:- 2 (2006) 5 SCC 766 é “11: We may also observe that when the Division ‘Bench of the High Court was considering the case of the appellant holding that he had sought “compassion”, the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say “goodbye” to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate ofArticle J4 of the Constitution.” In the matter of National Hydroelectric Power Corporation and another Vs. Nanak Chand and another3, father of the dependent died on 10.12.1976 While Working under the appellants. After attaining majority in 1986, the respondent filed an application for appointment on compassionate ground. The application was rejected on the ground of delay as well as on the ground that the Corporation has already surplus staff. The dependent filed writ petition before the High Court of Himachal Pradesh. The High Court referring to the instructions issued by the Govt. of India held that th dependent was entitled for the directions as prayed for in the petition. Allowing the appeal and setting aside the above order of the High Court, the on’ble Supreme Court held that where claim for compassionate appointment is highly belated and the same was made by the dependent on attaining majority after 10 years of N 3 (2004) 12 scc 487 e H ‘ his father’s_ death, the petition for compassionate appointment would not be maintainable. In the instant case, father of the petitioner died in April, 1997, the State of Chhattisgarh came into existence on 1.11.2000; Circular dated 1.5.2000 issued by the erstwhile State of MP clearly stipulates-that the application for compassionate appointment could be filed within a period of three years from the date of death of the deceased employee; there is nothing on record to show that the petitioner applied for compassionate appointment within three years after 'the death of his father before the erstwhile State of MP. The subsequent Circular dated 15th December, 2000 was issued after the State of Chhattisgarh came into being, whereby appointment could be granted up to five years after death of the government employee and if the vacancy is not available in this period of five years, the dependent ceases to be eligible for compassionate appointment. The Memo of Annexure P/l was issued after more than 10 years of the death of the petitioner’s father, there is nothing on record to establish that the petitioner applied for compassionate appointment within a period of three years or five years after the death of his father. In these circumstances, relying upon the judgment in ‘the matters of Sajad Ahmed Mir2 and Nanak Chand and another3, no direction, as prayed for by the petitioner, for grant of compassionate appointment can be issued to the respondents.» The petition is Without any substance, the same deserves to be dismissed and is accordingly, dismissed at the admission stage itself. No order as to costs. Sd/- Dhirendra Mishrai Judge