Compassionate appointment is not a matter of right: Chhattisgarh High Court

 1 AFRHIGH COURT OF CHHATTISGARH AT BILASPURWPS No. 305211.Santosh Kumar Rajwade S o Matukdhari Ram Aged About 22 Years R oVillage Sundarpur Post Sirsi Tahsil Bhaiyathan District SurajpurChhattisgarh Petitioner Versus 1.Chairman Chhattisgarh State Power Companies Raipur District RaipurChhattisgarh2.Chief Engineer Human Resources Chhattisgarh State Power DistributionCompany Limited Raipur District Raipur Chhattisgarh 3.Superintendent Engineer Chhattisgarh State Power Distribution CompanyLimited Ambikapur District Surguja Chhattisgarh.4.Executive Engineer Chhattisgarh State Power Distribution CompanyLimited Ambikapur District Surguja Chhattisgarh RespondentsFor Petitioner: Shri C. J. K. Rao Advocate. Hon ble Shri Justice P. Sam KoshyOrder on Board19 07 20211.Aggrieved by the order Annexure P 1 dated 08.04.2020 the presentwrit petition has been filed.2.Vide the impugned order the petitioner s claim for compassionateappointment has been rejected on the ground of application havingbeen moved at a belated stage.3.The facts in the present writ petition are that the father of thepetitioner was working under the respondents as a Lineman whodied in harness way back on 28.02.2004. At the time of death of thedeceased the petitioner was a minor aged around Six years. Heattained the age of majority in the year 2016. Thereafter the 2 petitioner had moved an application for compassionate appointmentwhich now vide the impugned order has been rejected.4.Perusal of the proceedings would clearly reveal that under the policyof compassionate appointment governing the field it has beenspecifically prescribed that the period for applying for compassionateappointment is one year. In the instant case the petitioner admittedlymoved an application much beyond a period of one year. 5.From the aforegiven factual matrix itself and what is evidentlycleared is that from the time of the death of the deceased employeei.e. in the year 2004 now the petitioner moved an application forcompassionate appointment they could sustain themselves whichby itself shows that the petitioner had sufficient source of income.Moreover no specific reason has been assigned as to why either thewidow of the deceased or any other legal heirs of the deceased hadnot sought for compassionate appointment at that point of time. 6.It is settled position of law that mode of recruitment by way ofcompassionate appointment is not to be treated as another source ofappointment recruitment. The policy for compassionate appointmentis part of a welfare policy granting social protection to the employeesand their family members. The purpose of compassionateappointment is to mitigate immediate hardship and distress a familyfaces on the death of the bread earner. The same has been framedas a welfare scheme on behalf of the welfare State to ensure thatfamily members of the deceased employee may avail the said facilityby seeking employment in the event they face any financial crises in 3 accordance with the policy governing the field. In the instant casethere is also a policy for compassionate appointment governing thefield. The policy for compassionate appointment prescribes a periodof limitation within which an application has to be made. The policydoes not provide for a clause whereby in the event one of the legalheirs being minor his her claim can be kept live till he she attains theage of majority. 7.Another fact which needs appreciation at this point of time is that thepolicy for compassionate appointment applicable in the respondent establishment is not under challenge. Merely because a death of anemployee has occurred by itself would not again give rise to a rightfor appointment but would only have a right for being considered foremployment subject to the claimants fulfilling other requisiteeligibility criteria under the policy for Compassionate Appointment. Incase if the other family members are having strong financialbackground the claim for compassionate appointment can beconsidered in favour of somebody more needy.8.It is settled position of law that a claim for compassionateappointment has to be strictly in accordance with the policy forcompassionate appointment applicable in the establishment and therespondents establishment is always expected to strictly adhere tothe conditions stipulated therein. 9.In the instant case firstly the application for compassionateappointment being moved after about more than a decade and halfand secondly there being no challenge to the policy for 4 compassionate appointment. This Court finds it difficult to entertainthe writ petition in the given factual backdrop particularly when thefindings given by the respondents in the course of rejecting theapplication being strictly in accordance with the Policy. 10.The Hon ble Supreme Court in the case of Sanjay Kumar v.The State of Bihar and Anr. {2000 7 SSC 192} in paragraph 3referring to an earlier decision on the field has clearly held thatunless these provisions specify for the same a claim forcompassionate appointment can not be reserved until a minorattains the age of majority.11. Similar views have also been taken by the Hon ble Supreme Courtearlier in the case of Umesh Kumar Nagpal vs State Of Haryana{1994 4 SSC 138} which has again been followed subsequently inthe case of State Of Manipur vs Md. Rajaodin {2003 7 SSC 511}.Again in the case of Steel Authority Of India Ltd vs Madhusudan Das& Ors {2008 15 SSC 560} wherein again Hon ble Supreme Court hasemphasized the fact that compassionate appointment can not beclaimed as a matter of right the same can be provided only inaccordance with the rules policy governing the field.12.It is repeatedly held by the Hon ble Supreme Court that an offer ofcompassionate appointment as a welfare measure by the employeris only a relaxation and it is an exception to the recruitment rules. Inthe case of MGB Gramin Bank V. Chakrawarti Singh {(2014) 13 SSC583} the Hon ble Supreme Court in paragraphs 06 to 15 has settled 5 the aforesaid legal position. For ready reference Paragraphs 06 to 15are being reproduced hereinunder: 6. Every appointment to public office must be made by strictlyadhering to the mandatory requirements of Articles 14 and 16 ofthe Constitution. An exception by providing employment oncompassionate grounds has been carved out in order toremove the financial constraints on the bereaved family whichhas lost its bread earner. Mere death of a Governmentemployee in harness does not entitle the family to claimcompassionate employment. The Competent Authority has toexamine the financial condition of the family of the deceasedemployee and it is only if it is satisfied that without providingemployment the family will not be able to meet the crisis that ajob is to be offered to the eligible member of the family. Moreso the person claiming such appointment must possessrequired eligibility for the post. The consistent view that hasbeen taken by the Court is that compassionate employmentcannot be claimed as a matter of right as it is not a vestedright. The Court should not stretch the provision by liberalinterpretation beyond permissible limits on humanitariangrounds. Such appointment should therefore be providedimmediately to redeem the family in distress. It is improper tokeep such a case pending for years. 7. In Umesh Kumar Nagpal v State of Haryana & Ors. 4SCC 138 this Court has considered the nature of the rightwhich a dependant can claim while seeking employment oncompassionate ground. The Court observed as under:at page 1563 as:“‘vested’ Fixed accrued settled absolute complete. Havingthe character or given in the rights of absolute ownership notcontingent not subject to be defeated by a conditionprecedent. Rights are ‘vested’ when right to enjoyment present or prospective has become property of someparticular person or persons as present interest mereexpectancy of future benefits or contingent interest inproperty founded on anticipated continuance of existing laws does not constitute vested rights.” 12. In Webster’s Comprehensive Dictionaryat page 1397 ‘vested’ is defined as Law held by atenure subject to no contingency complete established by lawas a permanent right vested interest.6 SCC 570)13 Thus vested right is a right independent of any contingencyand it cannot be taken away without consent of the personconcerned. Vested right can arise from contract statute or byoperation of law. Unless an accrued or vested right has beenderived by a party the policy decision scheme could bechanged.14. A scheme containing an in pari materia clause as isinvolved in this case was considered by this Court in StateBank of India & Anr. vs. Raj Kumar11 SCC 661. Clause14 of the said Scheme is verbatim to clause 14 of the schemeinvolved herein which reads as under: “14. Date of effect of the scheme and disposal of pendingapplications: The Scheme will come into force with effectfrom the date it is approved by the Board of Directors.Applications pending under the Compasionate AppointmentScheme as on the date on which this new Scheme isapproved by the Board will be dealt with in accordance withScheme for payment of ex gratia lump sum amountprovided they fulfill all the terms and conditions of thisscheme.” 15. The Court considered various aspects of servicejurisprudence and came to the conclusion that as theappointment on compassionate ground may not be claimed asa matter of right nor an applicant becomes entitledautomatically for appointment rather it depends on variousother circumstances i.e. eligibility and financial conditions of thefamily etc. the application has to be considered in accordancewith the scheme. In case the Scheme does not create any legalright a candidate cannot claim that his case is to be consideredas per the Scheme existing on the date the cause of action hadarisen i.e. death of the incumbent on the post. In State Bank ofIndia & Anr.this Court held that in such a situation thecase under the new Scheme has to be considered. 8 13.Given the aforesaid legal position as it stands with the catena ofauthoritative decisions by the Hon ble Supreme Court if we look intothe impugned order this Court clearly finds that the decision taken bythe respondents seems to be strictly in accordance with Policygoverning the field and without there being any exception in thepolicy or a clause by which the claim could have been kept pendingtill the minor attains the age of majority. Moreover the policy itself isnot under challenge in the present writ petition. 14.For all the aforesaid reasons the writ petition therefore fails and isaccordingly rejected. The rejection of the writ petition would notpreclude the petitioner for approaching the respondents for anysympathetic consideration by the State Government if they so want upon the petitioner making a suitable representation in this regard.Sd (P. Sam Koshy)Judge Jyotijha 

Summary: When the earning member of the family dies, the compassionate appointment is not a matter of right but is up to the discretion of the establishment and must be strictly in accordance with the policy for compassionate appointment applicable in the establishment. This was decreed by the Hon’ble Justice Shri Justice P. Sam Koshy in the case of Santosh Kumar Rajwade Vs. Chairman, Chhattisgarh State Power Companies and Ors. [WPS No. 3054 of 2021] on the 19th of July before the Hon’ble High court of Chhattisgarh at Bilaspur. The brief facts of the case are, the father of the petitioner was working under the respondents as a Lineman who died in harness way-back on 28.02.2004. At the time of death of the deceased, the petitioner was a minor aged around Six years. He attained the age of majority in the year 2016. Thereafter, the petitioner had moved an application for compassionate appointment which now vide the impugned order has been rejected. he policy of compassionate appointment governing the field, it has been specifically prescribed that the period for applying for compassionate appointment is one year. In the instant case, the petitioner admittedly moved an application much beyond a period of one year. The petitioner is aggrieved by the impugned order and the present petition has been filed. The counsel for the petitioner submitted that the compassionate appointment is a matter of right and the establishment was infringing the rights. He also submitted that, the time limitation does not apply to the present case since the petitioner was a minor and has recently attained majority. The counsel for the respondents submits that, merely because a death of an employee has occurred by itself would not again give rise to a right for appointment but would only have a right for being considered for employment, subject to the claimants fulfilling other requisite eligibility criteria under the policy for Compassionate Appointment. In case if the other family members are having strong financial background, the claim for compassionate appointment can be considered in favour of somebody more needy. It was also submitted that, Perusal of the proceedings would clearly reveal that under the policy of compassionate appointment governing the field, it has been specifically prescribed that the period for applying for compassionate appointment is one year. In the instant case, the petitioner admittedly moved an application much beyond a period of one year. The learned judge heard the submissions of both the parties and observed that, From the afore given factual matrix itself and what is evidently cleared is that from the time of the death of the deceased employee i.e., in the year 2004, now the petitioner moved an application for compassionate appointment, they could sustain themselves which by itself shows that the petitioner had sufficient source of income. Moreover, no specific reason has been assigned as to why either the widow of the deceased or any other legal heirs of the deceased had not sought for compassionate appointment at that point of time. In Sanjay Kumar v. The State of Bihar and Anr. {2000 7 SSC 192}, the court held that, “unless these provisions specify for the same, a claim for compassionate appointment cannot be reserved until a minor attains the age of majority.” The court also referred to the judgement Steel Authority Of India Ltd vs Madhusudan Das &amp; Ors {2008 15 SSC 560}wherein again Hon’ble Supreme Court has emphasized “the fact that compassionate appointment cannot be claimed as a matter of right, the same can be provided only in accordance with the rules/policy governing the field.”