F^ ?" 2. 3. 4. 5. HI6H COURT OF CHHATns6ARH AT BILASPUR Writ Petition (S) No. Z89 of 2009 Petitioner Raj Kumar, S/o Late Laxamn Prasad Yadav, aged about 38 years, R/o Villa9e - Navgawan, P.S. Baloda, Distt. Janjgir Champa (C.G.) Versus Respondents 1. State of Chhattisgarh, Through : The Secretary, Water Resources Department, b.K.S. Bhawan, Raipur (C6) The Collector. Korba, Distt. Korba (C.6.) Executive Engineer, Hasdeo Baraj Jal Praband Sambhag, Rampur/Korba, Distt. Korba (C.6.) Chief Executive Engineer, Minimata Hasdeo Bango Pariyojna, Bilaspur, Distt. Bilaspur (C.6.) The Superintendent Engineer, Hasdeo Pariyojna Division, Water Resources bepartment, Rampur/Korba, Distt. Korba WRFT PEHTON UNDER ARTECLE 226 OF THE CONSTITUTION OF INNA Single Bench; Hon'ble Mr. Satish K. Agnihotri, J. Shri Hanuman Prasad Agarwal, Advocate for the petitioner. Shri Pankaj Shrivastava, Panel Lawyer for the respondents. O ROER (Passed on this 28th Day of February, 2009) 1. The petitioner, by this petition, seeks to challenge the order dated 23.11.2007 (Annexure P/l), passed by the respondent No.2, whereby the prayer of the petitioner for gpant of compassionate appointment has been rejected. 2. According to learned counsel appearing for the petitioner, the father of the petitioner was working as Chowkidar in the office of the respondent No:3, who died on 30.10.1997 in harness. The petitioner submitted an application for grant of compassionate appointment. By the impugned order dated 23.11.2007 (Annexure P/l) it is held that the petitioner is not entitled to get compassionate appointment because within five years of the death of his father no vacant post was available. %:gKK 3. Learned counsel appearing for the petitioner submits that the case of the petitioner was considered by the authorities and after completin9 all the formalities the case of the petitioner was recommended by memo dated 26.7.2007 (Annexure P/7) for appointment on compassionate basis on the post of Shiksha Karmi. Thus, the impugned order dated 23.11.2007 (Annexure P/l), holding that the petitioner is not entitled for compassionate appointment because within five years of the death of his father no vacant post was available, is not sustainable. 4. The principle of law on the compassionate appointment is well settled. The compassionate appointment is granted only in the event, if an employee dies in harness and on account of sudden death, the dependent family has become penurious on sudden demise of the bread earner of the family. The compassionate appointment itself is a backdoor entry. It is a departure from the general rule of employment, as provided under the provisions of Article 14 and 16 of the Constitution of India. The appointment on compassionate basis is not in accordance with the constitutional scheme of employment but in order to sub-serve the above stated purpose. This provision has been made under the Rules framed by the State Sovernment. 5. The Hon'ble Supreme Court, in the case of Commissioner of Public Instructions and others vs. K.R. Vishwanatlt, while dealin9 with the question of the object of the compassionate appointment, observed as under "9. As was observed in State of Haryana v. Rani Dev^, 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. However, such claim is considered as reasonable and permissible on the basis of sudden crisis pccurring 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. bie-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 cas^ it was held that scheme re9arding appointment on compassionate ground if extended to al] types of casual or ad hoc employees including those who worked as apprentices cannot bejustified on constitutional grounds. In LICof India^. Asha Ramchhandra Ambekari it was pointed out that 1-ligh Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate 9rounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpalv. State of Haryanc^ that as a rule in public service appointment should 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 consideration the financial condition of the family of the deceased." "10. In Sushma Sosain v. Union of Indic^ 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 miti^ate the hardship 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 9 minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati^. Union of Indi^ and Union of India^. Bhagwan Singt^. In Director of Education (Secondary) v. Pushpendra Kumai1, 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- givin9 appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for 9round 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 uvhich 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 general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by takfng away completety fhe right conferred by the main provision." It is welt settled that the appointment on compassionate ground is not a method of recruitment, • but, is a facility to provide for immediate rehabilitation of the family in distress for relieving the dependent family members of the deceased employee from destitution. In other words, the object of compassionate appointment is to enable penurious family to tide over the sudden financial crisis and is not to provide employment. It is also well settled that mere death of the employee does not entitle his family to ,.^==s^^ y. 6. claim compassionate appointment if the family members could sustain themselves financially from other sources of income. The Supreme Court, in State of J & K and others vs. Sajad Ahmed Miif, after having considered all the aspects of compassionate appointment, observed as under:- "11. .......... it is that such an appointment is an exception to the general rule. Normally, an employment in the Sovernment 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 of Article 14 of the Constitution." The Supreme Court in the matter of National Institute of Technology and others Vs. Niraj Kumar Singh held as under:- "21. The appointment on compassionate ground, thus, could have been offered only to a person who was the widow of the deceased or a dependent child. Admittedly, the son of the deceased, Ashutosh Kumar was only one year old at the time of his father's death. He could not, thus, have been g'\ven any appointment on compassionate ground............" Applying the settled principle of law as enunciated by the Hon ble Supreme Court in various cases (Supra), to the facts of the present case, at this stage, there is no necessity to take recourse to exceptional method of recruitment i.e. contr-ary to the normal rule of T 9. appointment at the cost of interest of several other persons on the touchstone of Articles 14 or 16 of the Constitution. In view of the foregoing, this petition is devoid of merit and accordingly dismissed. Sd/- Satish K. Agnihotri Judge Thakur ' (2005) 7 SCC 206 2 (Z006) 5 SCC 766 3. {(2007)t2)SCC481}