Lakshmi Devi Vs. The State of Jharkhand Through Its Principle Secretary and Ors

1 W.P.(S) No. 7088 OF 2012 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 7088 OF 2012 Lakshmi Devi, widow of Late Harigovind Ram … … … Petitioner ­V e r s u s ­ 1. The State of Jharkhand through the Principal Secretary, Road Construction Department. 2. Engineer­in­Chief, Road Construction Department.

3. Chief Engineer (Communication), Road Construction Department.

4. The Accountant General (A & E), Jharkhand Office of the Accountant General (A & E), Doranda, Ranchi. 5. The District Provident Fund Officer, office of the District Provident Fund Officer, Ranchi. 6. The State of Bihar through the Engineer­in­Chief - cum - Additional Commissioner - cum - Special Secretary, Road Construction Department, Bihar, Patna. … .. … Respondents CORAM: ­ HON’BLE MR. JUSTICE DR. S. N. PATHAK For the Petitioner : Mr. Dr. H. Waris, Advocate. For the State : Mrs. Chandra Prabha, SC­IV For the State of Bihar : Mr. S.P. Roy, Advocate. For the Accountant General: Mr. S. Shrivasatava, Advocate. C.A.V. On 06/01/2017 PRONOUNCED ON 03 /03 /2017 Dr. S.N. Pathak, J. Heard. 2. Petitioner has approached this Court with a prayer for quashing memo no. 1231 dated 29.05.2012 (Annexure­14) by which claim of her son Abhay Nayak for compassionate appointment has been rejected. Petitioner has further prayed for appointment of her son on compassionate ground without any further delay and to pay death­cum­retiral benefits payable to her deceased husband along with family pension with interest. 3. The factual exposition as has been delineated in the writ petition is that late husband of the petitioner Harigovind Ram was posted on a newly sanctioned post vide memo no. 21, dated 17.01.1980. After working for some period in the office of Chief Engineer (Communication), Road Construction Department, Ranchi, petitioner's husband died in harness on 08.12.1993. After his death, second son of the petitioner Sanjay Kumar Nayak applied on 2 W.P.(S) No. 7088 OF 2012 01.03.1994 for his appointment on compassionate ground with a copy of death certificate of his father and other relevant documents. The second son of the petitioner Sanjay Nayak was not given compassionate appointment and as such, the family of the petitioner faced extreme financial crisis having no means of livelihood. The petitioner preferred representation dated 28.09.1994 for release of amount towards Provident Fund, Gratuity, Leave Encashment payable to her late husband and also for sanction of family pension. In view of said representation, amount of group insurance was released to the petitioner. It has been stated that when after lapse of more than 11 years, the case of second son of the petitioner Sanjay Kumar Nayak for appointment on compassionate ground was not considered though the Chief Engineer recommended for giving him appointment on the post of clerk which fell vacant due to sad demise of his father, said Sanjay Kumar Nayak suffered from depression. Thereafter, the 3rd son of the petitioner Abhay Nayak who was minor at the time of death of his father, with consent of the petitioner and other members of bereaved family, applied for providing him appointment on compassionate ground in prescribed format on 11.05.2005. When the petitioner's family was deprived of the family pension, Gratuity, Provident Fund payable to her late husband, said Abhay Kumar (son) represented on 08.09.2005 before the respondents authorities mentioning therein that neither compassionate has been given to the bereaved family nor pension has been finalised due to which entire family is at the verge of starvation. Thereafter, petitioner and her son filed several representations but no heed has been paid towards their grievance. Thereafter, the Deputy Secretary to Government of Jharkhand, Road Construction Department, Jharkhand, Ranchi vide his memo no. 3407(S) dated 15.05.2012, sought for report from the Chief Engineer regarding steps taken by him for providing appointment to son of the petitioner namely Abhay Nayak. However, vide letter no. 1231, dated 29.05.2012, the Chief Engineer (Communication), Road 3 W.P.(S) No. 7088 OF 2012 Construction Department, Jharkhand rejected claim of son of the petitioner for appointment on compassionate ground on the ground of delay of about 18 years. Being aggrieved, petitioner has filed the instant writ petition 4. Mr. H. Waris, learned counsel for the petitioner submitted that claim of son of the petitioner for appointment on compassionate ground has been rejected vide letter no. 1231 dated 29.05.2012 in an arbitrary manner without application of mind on the alleged ground of delay of 18 years without examining facts and circumstances of the case. He further submitted that delay was caused by the respondents themselves and the petitioner cannot be blamed for it. Learned counsel further submitted that as per the Personnel and Administrative Reforms Department, the memo no. 1329, dated 05.10.1991, all the earlier Notifications have been repealed and has decided interalia to provide appointment on compassionate ground on priority basis to the dependent of employees who died in harness and further, vide para­3, the period of limitation was lifted for applying on compassionate ground. Learned counsel further submitted that the letter no. 4735, dated 11.05.1992 of the Personnel and Administrative Reforms Department, is not applicable in the instant case as earlier the second son of the petitioner had applied for his appointment on 01.03.1994 itself but due to latches on the part of respondents, he was not issued appointment letter and, thereafter, he suffered depression and as such, the third son applied for his appointment on compassionate ground. Learned counsel further submitted that since case of second son Sanjay Kumar Nayak is still pending consideration since 01.03.1994, the letter no. 4735, dated 11.05.1992 is not applicable in the instant case. Learned counsel further submitted that action of the respondents in not providing appointment on compassionate ground has snatched bread and butter of the entire family and as such, the entire family is at the verge of starvation. Learned counsel further submitted that for the 4 W.P.(S) No. 7088 OF 2012 ends of justice as there is no earning member in the bereaved family of Late Harigovind Ram who died in harness, either of the son ought to have been given appointment on compassionate ground. It is further pointed out that even the amount towards Provident Fund was not paid to the petitioner till 24.12.2003 due to latches on the part of respondents. Even the family pension was paid to the petitioner in the year 2009 which itself shows the arbitrariness on their part. Learned counsel submitted that petitioner is entitled for interest on death­cum­retiral benefits payable to late husband including family pension from the date it fell due till the date of actual payment. Learned counsel further submitted that the ground of delay of family pension and death­cum­retiral benefits was loss of service book which is not tenable as the respondents themselves are the custodian of Service Book and petitioner or the deceased employee cannot be blamed for the same. 5. On the other hand, learned counsel for the respondents have opposed the prayer and submitted that claim of son of the petitioner - Abhay Nayak who applied on 07.04.2010 for appointment on compassionate ground has been rejected vide letter no. 1231, dated 29.05.2012 in view of the Department's guideline and circular dated 19.05.1992 issued by Personnel and Administrative Reforms Department, Government of Bihar (Annexure­A to the counter affidavit). 6. The respondent - State of Bihar has also filed counter affidavit in which they have specifically stated that no representation is pending regarding compassionate appointment with State of Bihar and the same has been disposed of. 7. Be that as it may, having gone through the rival submission of the parties, this Court is of the view that as the representation of the petitioner for appointment on compassionate ground has been rejected on the ground of inordinate delay, no case is made out by the petitioner for appointment on compassionate ground. 5 W.P.(S) No. 7088 OF 2012 Compassionate ground has to be considered on individual representations. A single representation cannot be taken as a continuous representation for the entire family. The family has survived for long and at the fag end after lapse of about 20 years, the case for compassionate appointment cannot be reopened as the purpose of giving immediate relief to the bereaved family has already frustrated. Compassionate appointment is given for immediate succor to the family, the same does not survive in the facts and circumstances of the instant case. Consideration for appointment on compassionate ground is contrary to provisions of Articles 14 and 16 of the Constitution of India and is only in the nature of concession and, therefore, it does not create a vested right in favour of the claimant. Providing employment in case of death in harness scheme is non­statutory scheme and is in the form of concession and does not create any vested right in favour of the party to be enforced through a writ of mandamus. Compassionate appointment is justified when it is granted to provide immediate succor to the dependent of the deceased employee and cannot be granted after passage of time. In the instant case the employee concerned died about two decades ago and, therefore, in the interest of justice and in view of settled principles of law, the respondents cannot be directed to reconsider the claim of the petitioner for compassionate appointment. The said principle has been reiterated in the case of Umesh Kumar Nagpal Vs. State of Haryana reported in (1994) 4 SCC 138. Similar view has been taken in the case of SAIL Vs. Madhusudan Das reported in (2008) 15 SCC 560 and in the case of Union of India Vs. Kishor reported in (2011) 13 SCC 131. As regards delay in payment of retiral benefits and family pension etc., the laches are on part of the respondents. The delay due to loss of Service Book cannot be the ground for delay in payment to the bereaved family. It is an admitted fact that the State is the custodian of the service book. If the same is lost or destroyed, 6 W.P.(S) No. 7088 OF 2012 the responsibility of the officers or the employer cannot be ruled out. This has been held in catena of decisions of this Court as well as of the Hon'ble Apex Court. However, from the pleadings made in the counter affidavit it is clear that by now all the death­cum­retiral benefits and the family pension have been paid to the petitioner but delay in payment cannot be discarded. 8. In view of aforesaid facts and circumstances, I hereby direct the respondents to pay statutory interest @12% per annum on the delayed payment amount on the death­cum­retiral benefits from the date it fell due till the actual date of payment. 9. This writ petition is accordingly partly allowed. The claim for compassionate appointment does not survive and as such, it is turned down. (Dr. S.N. Pathak, J) Dated the 3rd March, 2017 High Court of Jharkhand at Ranchi RC/A.F.R.