1. This petition has been filed against the order dated 27.11.2008, by which the case of the petitioner for appointment on compassionate grounds has been rejected by the respondents.
2. The father of the petitioner was serving as Teacher and died in harness on 29.05.2006. On 18.09.2006 the petitioner made an application seeking appointment on compassionate grounds. As per the averments made in the memo of petition, the family of deceased employee had received approximately Rs.4.82 Lacs towards retirement benefits and Rs.3,443/- as monthly pension. The application for compassionate appointment preferred by the petitioner came to be rejected by impugned order dated 27.11.2008 by respondent no.2. Being aggrieved by the impugned order, the present petition has been preferred.
3. Learned advocate for the petitioner contended that the action of the respondent in denying the compassionate appointment to the petitioner is against the terms and conditions of the policy. He further contended that the respondents have committed an error in rejecting the application of the petitioner for compassionate appointment relying upon the resolution / policy dated 29th March, 2007.
4. Mr.
JK Shah learned AGP submitted that the deceased employee had expired in the year 2006 and that the present petition has been preferred in the year 2011, i.e. after a period of about six years. He further contended when the petitioner submitted his application for compassionate appointment he was about 22 years, he cannot be said to be dependent. It was submitted that the family of deceased had received substantial amount towards post-death benefits of the employee concerned and monthly pension. They had survived for all these years and therefore, the very exigency does not survive.
5. In support of his submission, reliance has been placed on two unreported decisions of this Court rendered in L.P.A. No.618/2010 decided on 05.07.2011 and also on L.P.A. No.887/2010 decided on 18.11.2010. He also placed reliance on a decision of the Apex Court in the case of State Bank of India and Another v. Raj Kumar, (2010) 11 SCC 661 and more particularly, on the observations made in Paras - 8 & 9, which reads as under;
"8. It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependents of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the rules of by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant.
9. Normally, the three basic requirements to claim appointment under any scheme for compassionate appointment are (i) an application by a dependent family member of the deceased employee; (ii) fulfillment of the eligibility criteria prescribed under the scheme, for compassionate appointment; and (iii) availability of posts, for making such appointment. If a scheme provides for automatic appointment to a specified family member, on the death of any employee, without any of the aforesaid requirements, it can be said that the scheme creates a right in favour of the family member for appointment on the date of death of the employee. In such an event the Scheme in force at the time of death would apply."
6. Learned AGP, therefore, submitted that the present petition deserves to be rejected.
7. Heard learned counsel for the respective parties. The father of the petitioner passed away on 29.05.2006 and the application seeking compassionate appointment was made by the petitioner on 18.09.2006. It appears from the record that the family of deceased-employee had received post-death benefits to the tune of approximately Rs.4.82 Lacs and a monthly pension of Rs.3,443/-. Therefore, it was not that the family was left in dire straits on the death of the employee concerned. The family had sufficient means of livelihood and they survived for all these years, after the death of employee in the year 2006.
8. In the case of Union of India and Another v. B. Kishore, (2011) 13 SCC 131, the Apex Court has held that indigence of dependants of deceased employee is first precondition to bring case under the scheme of compassionate appointment and that absence of indigence would turn compassionate appointment reservation in favour of dependents of employee who died while in service, which would be directly in conflict with the ideal of equality guaranteed under Arts. 14 & 16 of Constitution.
9. In the case of Local Administration Department and another v. M. Selvanayagam @ Kumaravelu, (2011) 13 SCC 42 the Apex Court has been held that the object of compassionate appointment is to provide immediate succor to family, which may suddenly find itself in dire straits as a result of death of breadwinner and that an appointment made many years after death of employee or without due consideration of financial resources available to his/her dependents and financial deprivation caused to dependents as a result of his death, simply because claimant happened to be one of the dependents of deceased employee, would be directly in conflict with Arts. 14 & 16 of the Constitution.
10. It is true that the respondent-authority took several years to decide the application of the petitioner for compassionate appointment. However, the fact remains that the family had survived for almost six years after the death of deceased employee. The family had received substantial amount as post-death benefits and also monthly pension. The object of the Scheme is to provide immediate succour to the family and therefore, the consideration of the case of petitioner, after a period of almost six years, would frustrate the very purpose of the Scheme since the family of the petitioner had survived for all these years.
11. Considering the facts of the case and the principle rendered by the Apex Court in State Bank of India, B. Kishore and M.
Selvanayagam @ Kumaravelu's cases (supra), I do not find any reason to entertain this petition. Hence, the petition is dismissed. Notice is discharged.
[K.
S. JHAVERI, J.] pawan Top