Case BriefsHigh Courts

Karnataka High Court: R. Devdas, J. allowed a writ petition under Articles 226 and 227 of Constitution of India, and quashed the order passed by Bengaluru Development Authority, denying compassionate appointment to the petitioner.

In the instant case, the petitioner filed an application before the Bengaluru Development Authority (respondent), seeking appointment on compassionate ground. It was rejected by the respondent on the ground that petitioner was born out of the second marriage of his father who was an employee of the respondent-Authority. Thereby, the petitioner filed a writ petition before the High Court to quash the said order.

The learned counsel of the petitioner, Sri Shanmukhappa, submitted that the impugned order was passed by the respondent keeping in mind the Circular dated 27-08-2015 wherein it was stated that the children born out of second marriage of a government servant or an employee could not seek appointment on compassionate ground, which was offensive to the constitutional guarantee against discrimination. For this he relied on the judgment of the Supreme Court in Union of India v. V.R. Tripathi, 2018 SCC OnLine SC 3097, where it was held that “Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment.”

In the view of the above, the Court allowed the petition and ordered to quash the impugned order dated 12-03-2018. It also directed the respondent to reconsider the application of the petitioner, and pass the order in accordance with law within a period of two months.[Lalit Gowda v. State of Karnataka, WP No. 28676 of 2018 (S-RES), decided on 25-04-2019]

Case BriefsHigh Courts

Patna High Court: The Three-Judge Bench of Ashwani Kumar Singh, Birendra Kumar and Anil Kumar Upadhyay, JJ. disposed of an appeal arising out of a reference made by the Division Bench of this Court, in view of conflicting judgments on the aspect of maintainability of a claim for compassionate appointment of a child born from the second marriage of deceased employee, while the first marriage is subsisting.

A circular issued in 2005 under by the Personnel and Administrative Reforms Department of Government of Bihar declared that if a government servant marries while earlier marriage is subsisting, without the permission of the government, then such spouse and the ward of such spouse would be disentitled for appointment on compassionate ground. In a petition filed before this Court, the learned Single Judge quashed the said circular and directed the petitioner authority to appoint minor-respondent herein (whose father died in harness and who was the son of deceased’s second wife) on compassionate grounds. 

The Court relied on Union of India v. V.R. Tripathi, 2018 SCC OnLine SC 3097 where the right to compassionate appointment to child of second marriage was acknowledged under Section 16(1) and 16(3) of the Hindu Marriage Act, 1955 (HMA); and where it was held that while designing a policy of compassionate appointment, State can prescribe the terms on which it can be granted. However, while making a scheme/ rule, State could not lay down conditions inconsistent with Article 14 of the Constitution of India.

It was opined that once Section 16 of HMA regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, the State could not exclude such a child from seeking the benefit of compassionate appointment. An employer, who is amenable to Part III of the Constitution, could not deny the benefit of compassionate appointment available to other legitimate children. Such a condition of exclusion would be arbitrary and ultra vires as it would bring out unconstitutional discrimination between legitimate children, who form one class.

If a government servant performs the second marriage, it would amount to misconduct committed in service. In such a case, if he is proceeded against for such misconduct while in service and misconduct is proved, the government may be free to take any action against such employee and the same may be a relevant consideration for denying the prayer for compassionate appointment of dependents of the deceased employee. However, if no disciplinary proceeding is initiated for any misconduct against an employee while in service; after his death, his dependents cannot be denied compassionate appointment on the ground that while in service, the employee had been guilty of misconduct.

It was observed that appointment on compassionate ground is not a source of recruitment but an exception to the general rule, the purpose of which is to prevent destitution and penury in the family of a deceased employee. Application for compassionate appointment must be decided on facts of each individual case. Therefore, the impugned order was modified and the subject circular was quashed to the extent it prevented children of the second wife from being considered for appointment on the compassionate ground; with a direction to the appellant to consider the claim of the respondent for appointment on compassionate ground on merit.[Bihar State Electricity Board v. Chadra Shekhar Paswan, 2019 SCC OnLine Pat 562, decided on 18-04-2019]

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Patna High Court: The Division Bench of Amreshwar Pratap Sahi and Anjana Mishra, JJ. rejected a petition assailing the order delivered by Central Administrative Tribunal, on the ground of inordinate delay in filing the petition.

In the instant case, an employee had died in harness in the year 1992. The matter for compassionate appointment in place of the deceased employee was taken up by the Central Administrative Tribunal where it was, ultimately, disposed of in 2008. The instant petition was filed challenging the order of the said Tribunal.

The Court noted that the present petition had been filed after an inordinate delay of almost ten years and the explanation sought to be given for the delay did not appear to be convincing. It was opined that the petition was heavily barred by laches, more so, as the subject matter related to that of compassionate appointment.

In view of the above, the Court declined to interfere on the ground of laches. [Ravi Shankar Kumar v. Union of India, 2019 SCC OnLine Pat 255, Order dated 27-02-2019]

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Meghalaya High Court: Yaqoob Mir, CJ dismissed a petition for compassionate appointment holding it to be without merits.

Petitioner’s father was in Meghalaya Police who died in harness in the year 1999 while debuted for operational duty at Shillong, West Khasi Hills District. In 2017, after a lapse of 18 years, petitioner applied for the compassionate appointment. His application was considered and rejected stating that in terms of the relevant Department Order, the application for appointment on compassionate grounds had to be filed within 1 year from the date of death of the Government servant or from the date of acquiring a necessary educational qualification. Therefore, petitioner’s claim was rejected as time-barred.

R. Sharon, Advocate for the petitioner admitted that he acquired the necessary qualification in 2011 but applied only in the year 2017.

The High Court found favour with submissions of Advocate General A. Kumar. It observed, “Compassionate appointment admittedly is a departure from normal rules of appointment but same has laudable object of saving the deceased’s family from crisis and financial complications. Here in the instant case, the family has survived for 18 years.” Petitioner failed to show any rule which would provide for considering his application and resultantly, the petition was dismissed. [Ravi Koch v. State of Meghalaya, 2019 SCC OnLine Megh 4, dated 04-02-2019]

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Patna High Court: A Single Judge Bench comprising of Shivaji Pandey, J. dismissed a petition as the denial of compassionate appointment was justified on the part of the respondents.

The petitioners challenged an order wherein their services were terminated on the ground that their family members were already in service when they were appointed on compassionate ground. It was contended by their counsel Md. Shahnawaz Ali that one of the family members shall be given the benefit of compassionate appointment when the only bread earner of the family dies.

The Court placed reliance on the fact that when the family members of the petitioners were working in the Corporation, the question of their appointment on compassionate appointment does not arise and thus termination of the petitioners was not erred on the part of the respondents.

Accordingly, the petition was dismissed but if an advertisement was published in future, the respondents shall be at liberty to consider the case of the petitioners on sympathetic grounds. [Pradeep Kumar Ram v. State of Bihar, 2018 SCC OnLine Pat 2268, decided on 21-12-2018]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge bench comprising of Aparesh Kumar Singh, J. while dealing with a civil writ petition rejected the petitioner’s claim for compassionate appointment in place of his father’s legally married wife.

Facts of the case were that the petitioner’s father – Laldo Turi – had two wives, first one Baso Devi and the second being the petitioner’s biological mother Jagni Devi. Baso Devi died while working as Piece Rated Worker in one of the projects of the respondent. The petitioner claimed compassionate appointment in lieu of Baso Devi’s death which was rejected on the ground that he was not the natural son of deceased employee but her step son. Petitioner claimed that even as a son of the second wife, he was entitled to compassionate appointment since Baso Devi’s service excerpts mentioned him as her son, and also because a family certificate issued by the Circle Officer showed Jagni Devi as the co-wife of his father Laldeo Turi and him as their son.

The legal issue to be decided was as to whether the petitioner would be covered under the expression ‘son’ and/ or ‘legally adopted son’ under Clause 9.3.3 of Social Security chapter of National Coal Wage Agreement-VII (NCWA-VII), to seek compassionate appointment.

Clause 9.3.3 of NCWA- VII provides for employment to the dependent of a deceased employee dying in harness who fall in the category of wife/ husband/unmarried daughter/son/legally adopted son.

The Court noted that for the purposes of the said clause, a dependent would mean wife/ husband, unmarried daughter, son and legally adopted son. If no such direct dependent is available for employment, brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the deceased and almost wholly dependent on the earnings of the deceased, may be considered to be the dependent of the deceased. It was noted that the categories of dependents included in the clause are those who have a valid and legal relationship with the employee.

Having regard to the aforesaid noting, the High Court observed that the petitioner was not a legally adopted son of the deceased employee Baso Devi. Moreover, the fact that the deceased employee is not his biological mother was revealed by him much later. Holding that the petitioner did not fall under any of the categories stated above, the writ petition was dismissed. [Nageshwar Turi v Central Coalfields Limited,2018 SCC OnLine Jhar 1207, Order dated 19-09-2018]

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Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., allowed a writ petition filed against the order of the respondent authorities, rejecting petitioner’s claim for compassionate appointment on the ground that compassionate appointment cannot be granted in cases of deemed death or civil death.

The main issue for consideration, in this case, was whether the respondent authorities were justified in rejecting petitioner’s claim on the ground that compassionate appointment cannot be granted in cases of deemed death.

The Court observed that there is no distinction between civil death or deemed death and natural death. The Court referred to its own decisions including Bijay Kumar Pradhan v. State of Jharkhand, 2013 SCC OnLine Jhar 1417 and Sunil Kumar v. State of Jharkhand, 2015 SCC OnLine Jhar 2308. In both these cases the Court had held that there is no difference between civil and natural death, hence compassionate appointment cannot be denied in cases of civil death.

The Court held that as per Section 108 of the Indian Evidence Act, 1872 “if a person has not been heard of for 7 years by those who could naturally have heard of him if he has been alive, then the burden of proof that he is alive is shifted on the person who affirms it.” In this case, the petitioner and her mother successfully proved that they have not heard of the petitioner’s father for more than last 7 years and the respondents have themselves admitted that petitioner’s father has met with civil death. On these grounds the Court allowed the petition and quashed the order of respondent authorities, directing them to consider petitioner for compassionate appointment.[Praveen Kumar Singh v. State of Jharkhand,2018 SCC OnLine Jhar 753, Order dated 25-07-2018]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., allowed a writ petition filed against the order of Respondent-authority whereby petitioner’s claim for compassionate appointment after the death of his mother was rejected.

The main issue, in this case, was whether the respondent authorities can come up with a new ground for rejection of petitioner’s application in subsequent proceedings.

The Court, in this case, observed that initially the claim of petitioner was rejected by the respondents on the ground that the petitioner ought to have applied for a compassionate appointment within six months from the death of his mother. The Court had then rejected the plea of the respondent and had directed them to reconsider the case of petitioner, however the same was again rejected on the ground that the petitioner was below fifteen years of age at the time of death of his mother and hence he could not have been kept on live-roaster for compassionate appointment.

This plea was not raised by the respondent authorities previously and the respondents had come up with this new contention only after the matter was once directed to be re-considered. Hence, the Court held that if this is allowed then it would lead to a never-ending series of litigation and the contention of the respondents was rejected. Accordingly, the petition was allowed and the order of the respondent authorities was quashed by the Court.[Budhu Oraon v. Central Coal Fields Limited,2018 SCC OnLine Jhar 640, dated 12-07-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench comprising of Ali Mohammad Magrey, J., dismissed a petition filed by the petitioner seeking the benefit of SRO 43 of 1994 [Jammu & Kashmir (Compassionate Appointment) Rules, 1994].

The petitioner was an adopted son whose father was killed in an encounter between Army and militants. The petitioner sought compassionate appointment against the death of his father.

The Court, in this case, referred to various Rules of SRO 43 of 1994 including Rule-2 wherein applicability of the said rules has been laid down which includes adopted sons and daughters as well within its ambit. The Court then referred to SRO 177 which amended certain rules of SRO 43 of 1994 and observed that as per the amendment to clause (d) of Rule 2, the benefit of SRO 43 of 1994 shall be given to the adopted sons or daughters only if the personal law of the community to which the beneficiary/adoptee belongs, allows the process of adoption.

The Court concluded by holding that the petitioner was not entitled to the benefit of SRO 43 of 1994 since his community does not permit the process of adoption and hence the petition was dismissed. [Mohammad Rafiq Wagay v. State of J&K,2018 SCC OnLine J&K 470, order dated 26-07-2018]

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Gauhati High Court: The Single Judge Bench comprising of Ajit Singh, C.J., decided a petition filed under Section 227 of the Constitution. The petitioners had hired the deceased Sri Dimeswar Hira who died in harness, after his death, they hired his son on compassionate grounds and unfortunately he also died that is when respondent submitted an application to be hired on compassionate grounds to the petitioners for which the petitioners deputed the Welfare Inspector for the actual position of the daughter. After the due verification by the Welfare Inspector, the recommendations made were of appointment of the unmarried and unemployed daughter of the deceased on compassionate grounds.

The petitioners ignored the report of Welfare Inspector by declining the case of respondent for her compassionate appointment. The petitioners stated that respondent had failed to establish the fact that she was dependent on the deceased. The respondent went in appeal to the administrative tribunal against the decision of the petitioner’s which was allowed. Aggrieved by the same, the petitioner’s were before the High Court.

Dismissing the petition, the Court concluded that, the petitioners ignored the facts established by the Welfare Inspector about the respondent being the unmarried and unemployed daughter of the deceased and no proof of her dependency on her late father can be expected and even more so when the petitioners failed to rebut the stated presumption. [Union of India v. Himani Hira, 2018 SCC OnLine Gau 393, order dated 11-05-2018]

Case BriefsHigh Courts

Delhi High Court: Recently before the Delhi High Court, a case regarding compassionate employment to a second wife of the deceased husband came up. Champa Devi- the second wife and the appellant pleaded that she was the legally wedded wife of the deceased as the late husband and employee (government) of GTB Hospital had sworn and declared on affidavit in 1990 that the petitioner was his lawful wife. However, the first wife of the petitioner was still alive at the time he sworn in the affidavit. It was only in 1994 that the first wife passed away.

The High Court noted that it was only in 2013 while she had the opportunity to state so when she applied for succession certificate or sough appointment on compassionate grounds, the petitioner claimed before the Court that she married the deceased as per Hindu rites in 1994 after the death of his first wife, but couldn’t present enough evidence to prove it. The same was not mentioned even in the certificate of marriage issued by Gram Panchayat of their village. Ever since the inception of the suit, her contention had been that she married the deceased by way of execution of a marriage deed and an affidavit.

On this, the Court went on to observe that under Hindu Law, marriage is a sacrament and not a contract which can be entered into by execution of a marriage deed.  She never even disputed the fact that at that time, he had a living spouse. She even contended that as she was the only wife alive at the death of her husband and therefore, she must be entitled to all the benefits. All these contentions were rejected by the Court and it upheld the judgment of the courts below observing that the appellant can not claim the status of a legally-wedded life and relied on the reasons stated above. [Champa Devi v. Lt. Governor of Delhi, 2017 SCC OnLine Del 6562, decided on January 17, 2017]

Case BriefsHigh Courts

Rajasthan High Court: While deciding a case concerning compassionate appointment of child of a deceased employee of United Corporate Bank the Divisional Bench of Deepak Maheshwari and Sangeet Lodha, JJ. held that compassionate appointment is just to help the family in harness to get over the immediate crisis by the loss of sole breadwinner. This category of appointment cannot be claimed as a right after a lapse of the period when the crisis is over. Financial status of the family is also to be looked into as per the scheme framed by the employer while giving compassionate appointment and such appointment cannot be conferred contrary to the scheme.

In the present case, death of father of the petitioner took place 17 year ago, hence the Court held that the period of crisis for the  family is over. Further, the condition of the family was not found to be penurious as required under the parameters of the scheme of the employer Bank applicable at the time of deciding the application for compassionate appointment.

The  Court relied on the judgement of the Supreme Court in  State Bank of India v. Somvir Singh, (2007) 4 SCC 778 and observed that it is within the domain of the employer to calculate the income of the family of the deceased employee and the Court should not disturb the finding arrived at by the employer. [UCO Bank (United Commercial Bank) v. Devi Kishan Harijan, 2016 SCC OnLine Raj 8299 , decided on 21.12.2016]

Case BriefsHigh Courts

Madras High Court: Deciding an appeal filed against the impugned judgment of the writ court wherein the claim for compassionate appointment of the petitioner was accepted and the rejection order of the appellants was set aside, the division bench of S. Manikumar and G. Chockalingam held that the request of the petitioner for appointment on compassionate grounds cannot be entertained, as on the date of application, he was minor. The Court further observed that employment assistance on compassionate appointment, is only a concession, extended to an eligible member of the family, to apply for a suitable post, in the service, in which, the employee/Government servant died in harness and it is not a right, which can be exercised by a minor on attainment of majority.

In the instant case the mother of the petitioner was working as a sweeper in Central Prison, Tiruchirappalli. On 30.03.1998, she died in harness. At that time, the writ petitioner was a minor. The appellants submitted that at the time of the death of petitioner’s mother, the petitioner was a minor, aged 12 years. It was further submitted that there is no provision to reserve any post as vacant, till the writ petitioner attains the age of majority. Per Contra S.K.Mani, learned counsel for the writ petitioner submitted that the scheme of compassionate appointment is to tide over the financial constraint of the bereaved family of a Government servant and it should be extended, even after several years, from the date of death of the Government servant, when there is no improvement in the economic status of the family.

After careful perusal of the facts and law, the Court highlighted that the scheme of employment assistance on compassionate grounds and modified by various Government orders issued from time to time, makes it clear that though indigent circumstance is one of the factors to be considered, while examining the eligibility of an applicant to seek for employment assistance, equally, the other requirement under the Government orders issued from time to time, that the application should be submitted within three years from the date of death, cannot be ignored. Moreover, entry into any service in the State, the minimum age is 18 years, and no minor can be appointed to any service. Therefore, he cannot make any application for appointment to any post in service and no post can be kept vacant for him, till he attains majority, the Court held. [The Inspector General of Prisons v. P.Marimuthu, 2016 SCC OnLine Mad 2501, decided 22.04.2016]