1 '\fl /h .M^ T ^^ £. ^7 3^0 W THE HON'BIE HIGH COURT OF GHHATTISGARH AT BILASPUR fCHHATTISGARH) Writ Petition fService) No. ^RSCs Qf 2007, PETITIONER ;^^ .,.-^%^^"" ^•^""^•'•;" ^.--" fe'."^' :- / Dushyant Kumar Gupta, son ofLate Bihari Lal, aged about 29 years, resident of Infi-ont of Dr. Kalvit Nljrsing Home, Saroj Stores, Seepat Chowk, Sarkanda, Bilaspur (Chhattisgarh). VERSUS / RESPQNDENTS :- ^ 1. State of Chhattisgarh, Through Secretary, Tribal Development Department, Mantralaya, D.K.S. Bhawan, Raipur (Chhattisgarh), /2. Commissioner, Tribal Welfare Development Departinent, Raipur (Chhattisgarh), 3. Assistant Commissioner, Tribal Development, District Bilaspur (CUhattisgarh), 4. State of Madlya Pradesh, Through The Secretary, General Administration Department, Vallabh Bhawan, Bhopsd (M.P.), 5. Union of India, Through The Secretaty, Ministry of Human Resources, New Delhi i I!1 ; I1! II"! :1 !? il ^ PETITION UNDER ARTICLE 226 OF CQNSTITUTION OF INDIA ^- PETITIONER HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.4956 OF 2007 Dushyant Kumar Gupta RESPONDENTS Versus State of Chhattisgarh and others (Writ petition under Article 226 of the Constitution of India) Single Bench : Hon'bte Shri Satish K. Agnihotri, J. Present: Shri H. B. Agrawal, Senior Advocate with Smt. Meera Jaiswal, counsel for the petitioner. Ms. Sunita Jain, Panel Lawyer for State of Chhattisgarh. Shri K. Shakeel, counsel for the Union of India/respondent No.5. ORAL ORDER (Passed on this 22nd day of September, 2009) With the consent of learned counsel for the parties, the petition is heard finally. 2) The indisputabte facts, in nutshell, as projected by the petitioner, the father of the petitioner namety Shri Bihari Lal Gupta, working as Assistant Teacher in the School of Tribal Development Department died on 30-05-1985. According to the petitioner, at that time, the petitioner was minor. After attaining the age of majority, the petitioner submitted an apptication before the Block Development Officer on 01-09-1998. However, when the same has not been considered, the petitioner preferred a Writ Petition being W.P.No.3865/2004. Vide order dated 16-12-2005, this Court after considering all the aspects of the case, directed the respondent authorities to consider representation of the petttioner in accordance with law as eariy as possible preferable within a period of three months. Th^feafter, the petitioner submitted representations, as is evident from tAnnexure P/3 to P/5. The Assistant Commissioner, Tribal Welfare by order dated 28-01-2006, rejected the claim of the petitioner on the ground that the father of the petitioner died on 30-05-1985, therefore, the petitioner is not entitled for compassionate appointment as per circular dated 10-06-2003. 3) Being aggrieved by the aforesaid order, the petitioner preferred the instant writ petition and prays that clause 12(5) ofthe Circular dated 10-06- 2003 may be deleted and the case of the petitioner may be considered for grant of compassionate appointment. d 4) Per contra, Ms. Jain, learned counsel appearing for the State, submits that the State Government has taken a decision not to consider those cases wherein the Government employee had died before 1-11-1997. In the present case, fatherofthe petitioner died on 30-05-1985. Thus, the petitioner is not entitled to grant of compassionate appointment. ^l •s--- 5) I have heardlearned counsel for the parties, perused the pleadings and documents appended thereto. The State of Chhattisgarh has been created on 01 of November, 2000 and on the basis of that some employees of the unified State of Madhya Pradesh have come to this State. The State Government after considering the cases of the compassionate appointment of so many dependents of the deceased employees vide its circular dated 10-06-2003 framed some guidelines. As per clause 12(5) of the said circular, it has been decided to grant compassionate appointment to the dependents of the deceased employees who died on or after 1 of November, 2000. Thereafter also, being a welfare State, amended its circular dated 10-06-2003 and issued the fresh circular dated 02-02-2006, copy of which has been produced during the course of arguments. By the said circular, the State Govt. decided to consider the cases of grant of compassionate appointment to the dependents of those deceased employees who died on or after 01-11-1997, in place of 01-11-2000. In spite of that also, the case of the petitioner does not come under the zone of consideration, as the father of the petitioner, died much before 01-11- 1997 i.e. 30-05-1985. Thus, there is no illegality or infirmity in the impugned order dated 28-01-2006 (Annexure P/6) passed by the respondent authorities. The same is just, proper and needs no interference. 6) Be that as it may, it is well settled principle of law that the tappointment 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 claim compassionate appointment if the family members could sustain themselves financially from other sources of income. :' V- 7) In the matter of Haryana State Electricity Board and another vs. Hakim Singh the Hon'ble Supreme Court held that "the whole object of any compassionate appointment scheme is to give succor to the family to tide over the sudden financial crisis befallen the dependants on account of the untimely demise of its sole earning member." 8) The Supreme Court in the matter of State of lUanipur vs. IWd. Rajaodin , after having heard various cases on compassionate appointment, observed as under: "11. 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 appointments on compassionate ground is to mitigate 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 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 (Smt.) v. Union of India & 0/s. {1991 Supp (2) SCC 689} and Union oflndia & Ore. v. Bhagwan Singh {199S (6) SCC 476}. In Director of Education (Secondary) & Anr. v. Pushpendra Kumar & 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 ofthe 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 general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by fl 1 2007 AIR SCW 6060 2AIR2003SCW4339 K ^- %i Tumane ^- taking away completely the right conferred by the main provision." 9) In the matter of State of J & K and others vs. Sajad Ahmed IVIir , the Hon'ble Supreme Court after having considered all the aspects of compassionate appointment, in para 1 1 observed as under:- "11......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 14 ofthe Constitution." 10) Applying the well settled principles of law to the facts of the case on hand, wherein the father of the petitioner died well before the formation of State of Chhattisgarh i.e. 30-05-1985 and that the Government has taken a decision not to consider those cases wherein the Government employee had died before 1-11-1997, the petitioner does not deserve any relief. There is no merit in this petition. The petition is accordingly dismissed. No order asto costs. Sd/- Satish K. Agnihotri Judge ..^ Ifi ~t (2006)5 SCC 766 -\t ^ i S'£