Dismissed

Nitish Kumar Gopala v. R S R T C and Ors.

Rajasthan HC3 May 2016CW/3122/2008

Case brief

AI extract

What is this about?

The petitioner, a minor at the time of his father's death, challenged the rejection of his compassionate appointment application to an LDC post once he attained majority. The High Court held that the rules permit age calculation at application receipt but do not allow reconsideration after majority for minor applicants. The court dismissed the writ petition, finding no statutory basis to override

What did the court decide?

The writ petition was dismissed; the orders dated 06.09.2007 and 21.01.2008 rejecting the petitioner's application were upheld.

Nitish Kumar Gopala Vs R S R T C and Ors. — Pension and Retirement Benefits | Rajasthan HC (2016)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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S.B. Civil Writ Petition No.3122/2008

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Nitesh Kumar Gopala vs. RSRTC & Ors.

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Date of Order : 03.05.2016

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HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL

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Mr. Mahendra Shah, counsel for petitioner. Mr. Jai Lodha, counsel for respondents.

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The petitioner has challenged the orders dated 06.09.2007 and 21.01.2008 whereby his case for appointment on compassionate grounds has been rejected.

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The father of the petitioner, who was working with the respondent/ Corporation, expired on 23.08.2005. The petitioner applied for appointment on the post of LDC on compassionate ground vide application dated 28.09.2005. The respondents have rejected the application vide order dated 06.09.2009. Thereafter, the petitioner is stated to have filed an application to the Chief Minister through a Member of Lok Sabha. Vide communication dated 21.01.2008, the respondent/Corporation had sent factual report to the Special Secretary, Chief Minister's office stating therein the reasons for rejecting the application of the petitioner.

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Learned counsel for the petitioner has contended that as the petitioner was minor at the time of his father's death, his case should have been considered for appointment to the post of LDC, especially when at the time of consideration of his case, he had attained the age of majority. He has placed reliance on Rule 8 and 14 of the Rajasthan Compassionate Appointment of Dependants of

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Deceased Government Servant Rules, 1996 (hereinafter referred to as the 'Rules of 1996'). He has also contended that the action of the respondents in rejecting the application of the petitioner is discriminatory as they have considered cases of other similarly situated candidates as mentioned in order dated 25.10.2007 (Annexure-R1).

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Per contra, learned counsel appearing for the respondents has contended that as the petitioner was less than 18 years of age at the time of submission of his application, his case has been rejected in terms of Rule 8 of the Rules of 1996. He has also contended that in any event, the case of the petitioner for compassionate appointment cannot be considered at this stage as it is meant to enable the family of the deceased employee to tide over immediate financial crisis.

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I have heard the learned counsel for the parties and perused the writ petition.

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It would be appropriate to refer to Rule 8 & 14 of the Rules of 1996 which is reproduced hereunder:

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“ 8. Age – The dependant should be within the age limit prescribed for the post under the concerned service rules at the time of appointment:

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Provided that:

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(i) there shall be no upper age limit for a widow. (ii) the upper age limit shall be relaxed by five years in period upto 40 years of age, whichever is less, for others.

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(iii) the crucial date for calculating age shall be the date of receipt of application for appointment. The time spent in arranging a suitable post shall not disqualify the dependant in case he/she becomes overage during that period.

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14. Power to remove difficulties – The State Government may for the purpose of removing any

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difficulty (of the existence of which it shall be the sole judge) in the implementation of any provision of these Rules, make any general or special order as it may consider necessary or expedient in the interest of fair dealing or in the Public Interest.”

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A bare reading of Rule 8(iii) reveals that the date on which the age of the applicant would be calculated is the date of receipt of the application. It is also stipulated therein that the time spent for arranging a suitable post shall not disqualify the applicant if he becomes overage in the course of consideration of the application. However, there is no such provision which would suggest that the application of the under age applicant could also be considered after he attains the age of majority. In the absence of any such provision in this regard, it would not be possible for this Court to give a direction to the respondents to consider the candidature of the petitioner.

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It is apparent from reading of Rule 14 that it only empowers the State Government to make any general or special order for removing any difficulty in implementing the Rules, in case it is necessary in the interest of fairness or public interest. It is, thus, an enabling provision to facilitate the smooth implementation of the rules.

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It is no doubt that the case of the petitioner appears to be a hard case but it is well settled that the law has to be applied as it is and the provisions for compassionate appointment have to be strictly construed.

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Insofar as the contention of the learned counsel for the

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petitioner that the candidature of the similarly situated persons have been considered and the requisite relief has been granted vide order dated 25.10.2007 is concerned, the same does not merit acceptance. It is evident from perusal of the order dated 25.10.2007 that the Board of Directors of the Corporation had taken the decision pertaining to the applications for the post of Junior Engineer Grade-B, Driver, Conductor and Artison Grade-III as these posts were available for appointment on compassionate ground. There is no such document on record which would indicate that the post of LDC was also available with the respondents, against which the petitioner could be appointed on compassionate ground. In the absence of any post, which could be available with the respondents, the candidature of the petitioner could not be considered.

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It is trite that there is no absolute right for appointment on compassionate ground. The applicant is only entitled to consideration for appointment on compassionate ground in terms of the instructions or the Rules applicable thereto. Compassionate appointment has been craved out as an exception from the general principle of appointment in terms of Article 14 & 16 of the Constitution of India. It is meant to help the family of the deceased employee to tide over the financial crisis which engulfs the family on the death of the breadwinner. Compassionate employment cannot be claimed after lapse of reasonable time prescribed in the rules applicable thereto. I draw support from the judgment of the Hon'ble Supreme Court of India in the case of Bhawani Prasad Sonkar vs. Union of India, (2011) 4 SCC 209 wherein it was held:-

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“15. Now, it is well settled that compassionate

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employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee’s family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.

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16. We do not propose to burden this judgment with reference to a long line of decisions of this Court on the point. However, in order to recapitulate the factors to be taken into consideration while examining the claim for appointment on compassionate ground, we may refer to a few decisions.

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17. In Umesh Kumar Nagpal v. State of Haryana1, while emphasising that a compassionate appointment cannot be claimed as a matter of course or in posts above Classes III and IV, this Court had observed that: (SCC p. 140, para 2)

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“2. … The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against

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destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.”

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18. Similarly, in SAIL v. Madhusudan Das2 this Court has observed that: (SCC p. 566, para 15)

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“15. This Court in a large number of decisions has held that the appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for in the rules. The criteria laid down therefor viz. that the death of the sole bread earner of the family, must be established. It is meant to provide for a minimum relief. When such contentions are raised, the constitutional philosophy of equality behind making such a scheme be taken into consideration. Articles 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts which have fallen vacant. Appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said rule. It is a concession, not a right.”

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19. In V. Sivamurthy v. State of A.P.4 this Court while observing that although appointment in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution, yet appointments on compassionate grounds are well-recognised exception to the general rule, carved out in the interest of justice to meet certain contingencies, highlighted the following two well-recognised contingencies as exceptions to the general rule: (SCC p. 741, para 18)

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“(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service.

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(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner.”

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20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:

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(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make

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compassionate appointment dehors the scheme. (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.

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(iii) An appointment on compassionpate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a mattepr of course by way of largesse irrespective of the financial condition of the deceased /incapacitated employee’s family at the time of his death or incapacity, as the case may be.

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(iv) Compassionate employment is permissible only to one of the dependants of the deceased/ incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.”

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Reference may also be made to the judgment of the Supreme Court in the case of State of Gujarat & Ors. Vs. Arvind Kumar T. Tiwari & Anr. [(2012) 9 SCC 545] wherein it was held that the Courts do not have the power to issue direction to make appointment on compassionate ground by way of granting relaxation of eligibility or in a contravention thereof.

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This principle of law has been reiterated by the Supreme Court in the case of Rajasthan State Road Transport Corporation and Others vs. Revat Singh [(2015) 11 SCC 802].

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In view of the above, I do not find any infirmity in the action of the respondents in declining to appoint the petitioner on compassionate ground.

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In the result, the writ petition is dismissed.

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(ANUPINDER SINGH GREWAL),J.

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Sanjay Gaur Jr.PA

Nitish Kumar Gopala v. R S R T C and Ors.

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Nitish Kumar Gopala v. R S R T C and Ors.

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