State of Manipur Vs. Md. Rajaodin
EmailAppeal: Civil Appeal No. 6797 of 2003
(Arising Out of S.L.P. (C) No. 8460 of 2002)
(From the Judgment and Order dated 15.3.2002 of the Gauhati High Court in W.A. No. 50 of 2002)
(Arising Out of S.L.P. (C) No. 8460 of 2002)
(From the Judgment and Order dated 15.3.2002 of the Gauhati High Court in W.A. No. 50 of 2002)
Petitioner: State of Manipur
Respondent: Md. Rajaodin
Apeal: Civil Appeal No. 6797 of 2003
(Arising Out of S.L.P. (C) No. 8460 of 2002)
(From the Judgment and Order dated 15.3.2002 of the Gauhati High Court in W.A. No. 50 of 2002)
(Arising Out of S.L.P. (C) No. 8460 of 2002)
(From the Judgment and Order dated 15.3.2002 of the Gauhati High Court in W.A. No. 50 of 2002)
Judges: Doraiswamy Raju & Arijit Pasayat, JJ.
Date of Judgment: Aug 28, 2003
Appearances:
Mr. Khwairakpam Nobin Singh, Advocate for the Appellant.
Mr. S.K. Bhattacharya and Mr. L.K. Paonam, Advocates for the Respondent.
Mr. S.K. Bhattacharya and Mr. L.K. Paonam, Advocates for the Respondent.
Head Note:
CONSTITUTION LAWS
Articles 14,16 – Appointment on compassionate ground – Die- in- harness Scheme – Applicability – Death in 1980 – Applicant minor at that time -Period prescribed in scheme – Appointment subject to approval of DPAR -Also ban on appointments – Application moved in 1997. Held that application was highly belated and applicant cannot be appointed. Case law discussed.
Held:
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. (Para 8)
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 reasonable period after he attained majority is taken, certainly the application on 25.7.1997 seeking appointment was highly belated. (Para 7)
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). (Para 11)
Cases Reffered:
1. Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. (JT 1998 (4) SC 155) (Para 9)
2. State of U.P. and Ors. v. Paras Nath (1998 (2) SCC 412) (Para 10)
3. State of Haryana and Ors. v. Rani Devi & Anr. (JT 1996 (6) SC 646) (Para 8)
4. Union of India and Ors. v. Bhagwan Singh (1995 (6) SCC 476) (Para 9)
5. Life Insurance Corporation of India v. Asha Ramchhandra Ambekar (Mrs.) and Anr. (JT 1994 (2) SC 183) (Para 8)
6. Umesh Kumar Nagpal v. State of Haryana and Ors. (JT 1994 (3) SC 525) (Para 8)
7. Phoolwati (Smt.) v. Union of India and Ors. (1991 Supp. (2) SCC 689) (Para 9)
8. Smt. Sushma Gosain and Ors. v. Union of India and Ors. (JT 1989 (3) SC 570) (Para 9)
2. State of U.P. and Ors. v. Paras Nath (1998 (2) SCC 412) (Para 10)
3. State of Haryana and Ors. v. Rani Devi & Anr. (JT 1996 (6) SC 646) (Para 8)
4. Union of India and Ors. v. Bhagwan Singh (1995 (6) SCC 476) (Para 9)
5. Life Insurance Corporation of India v. Asha Ramchhandra Ambekar (Mrs.) and Anr. (JT 1994 (2) SC 183) (Para 8)
6. Umesh Kumar Nagpal v. State of Haryana and Ors. (JT 1994 (3) SC 525) (Para 8)
7. Phoolwati (Smt.) v. Union of India and Ors. (1991 Supp. (2) SCC 689) (Para 9)
8. Smt. Sushma Gosain and Ors. v. Union of India and Ors. (JT 1989 (3) SC 570) (Para 9)
JUDGEMENT:
ARIJIT PASAYAT, J.
1. Leave granted.
2. Respondent was found to be entitled for appointment under the die-in-harness scheme, by a learned single judge of the Gauhati High Court at Imphal bench, whose view was endorsed by the Division Bench. The State of Manipur is in appeal.
3. There is practically no controversy so far as the factual aspects are concerned and, therefore, need to be noted in brief.
3.1. 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 ban 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).
3.2. 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.
4. 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.
5. 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 no other alternative the respondent who was a minor at the time of his father’s death applied afresh and State cannot take plea that the benefit cannot be extended.
6. 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 behind his/her family in indignant circumstances.
7. 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 request 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 reasonable period after he attained majority is taken, certainly the application on 25.7.1997 seeking appointment was highly belated.
8. As was observed in State of Haryana and Ors. v. Rani Devi & Anr.1, 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 Article 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.2 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.3 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.
9. In Smt. Sushma Gosain and Ors. v. Union of India and Ors.4 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 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 and Ors.1 and Union of India and Ors. v. Bhagwan Singh2. In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors.3 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 general 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.
10. In State of U.P. and Ors. v. Paras Nath4 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.
11. 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).
12. 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.
1. Leave granted.
2. Respondent was found to be entitled for appointment under the die-in-harness scheme, by a learned single judge of the Gauhati High Court at Imphal bench, whose view was endorsed by the Division Bench. The State of Manipur is in appeal.
3. There is practically no controversy so far as the factual aspects are concerned and, therefore, need to be noted in brief.
3.1. 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 ban 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).
3.2. 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.
4. 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.
5. 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 no other alternative the respondent who was a minor at the time of his father’s death applied afresh and State cannot take plea that the benefit cannot be extended.
6. 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 behind his/her family in indignant circumstances.
7. 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 request 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 reasonable period after he attained majority is taken, certainly the application on 25.7.1997 seeking appointment was highly belated.
8. As was observed in State of Haryana and Ors. v. Rani Devi & Anr.1, 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 Article 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.2 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.3 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.
9. In Smt. Sushma Gosain and Ors. v. Union of India and Ors.4 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 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 and Ors.1 and Union of India and Ors. v. Bhagwan Singh2. In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors.3 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 general 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.
10. In State of U.P. and Ors. v. Paras Nath4 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.
11. 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).
12. 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.
