Zeenat Parween .... … v. 1. The State of Jharkhand 2. District Establishment Commissioner, Hazaribagh Committee
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Civil Review No. 25 of 2020 ------ Zeenat Parween .... …. Petitioner Versus 1. The State of Jharkhand 2. District Establishment Commissioner, Hazaribagh Committee, .... .... through .... Opp. Parties Deputy Coram: HON’BLE MR. JUSTICE RATNAKER BHENGRA ------ HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA ------ For the Petitioner For the Opp. Parties : Mrs. Nalini Jha, Advocate : Mrs. (Dr.) Vandana Singh, Sr. SC - III ------ C.A.V. on 20.09.2023 Pronounced on 05/01/2024 Per, Ratnaker Bhengra, J. The present review/modification application is being preferred for the review of the judgment and order dated 01.11.2017 passed in L.P.A. No. 558 of 2016 whereby and whereunder, L.P.A. No. 558 of 2016, was dismissed. 2. Learned counsel for the petitioner submitted that the father of the petitioner namely Ahmad Hussain Mallick, died in harness on 20.09.2012. Ahmad Hussain Mallick was serving under the respondents as Assistant Sub Inspector (Trainer), in Jharkhand Police Service at Padma in Hazaribagh. The petitioner is a married daughter of the deceased employee and her marriage was solemnized on 28.03.2010. Mother of the petitioner applied for compassionate appointment of her daughter (petitioner herein) on 22.04.2013, which was rejected by the order dated 11.11.2013 and the order of rejection
Legal Reasoning
was challenged in the writ petition being W.P.(S) No. 4639 of 2014.The aforesaid writ petition being W.P.(S) No. 4639 of 2014 was dismissed on 06.05.2016. 3. Learned counsel for the petitioner has submitted that in the case of kalyani Kumari Mishra Vs The state of Jharkhand and ors. passed in W.P.(S) No. 2818 of 2017 decided on 20.11.2017, a learned Single Bench of this Court had held that restricting operation of the definition of dependent under Clause 4 of 2015 scheme only from 01.12.2015, and not extending the benefit of the new rules to the claimant whose case was considered after 01.12.2015 would defeat the very object of the scheme for compassionate appointment and hence, irresistible conclusion which follows is that the petitioner’s claim for compassionate appointment has been declined illegally and no other ground for rejection is reflected in the proceeding of District compassionate Committee. Learned counsel for the petitioner further submitted that petitioner was dependent upon her father as on the date of death of her father -2- i.e. on 20th September, 2012. Widow of the deceased-employee is dependent upon this petitioner, as this petitioner is a sole child, hence petitioner should be given compassionate appointment. 4.
Legal Reasoning
Learned counsel for the petitioner further submitted that petitioner is physically handicapped (42 approx) and also a graduate and fulfills all the criteria for appointment in Grade 3 post on compassionate ground, but, arbitrarily, petitioner’s case for compassionate appointment was not considered. Order dated 11.11.2013, passed by the District Establishment Section, Hazaribagh or respondent no.2 herein is arbitrary, illegal, unconstitutional, malafide and against the principle of natural justice. Learned counsel for the petitioner submitted that petitioner was dependent upon her father on the date of death her father i.e. on 20.09.2012 and hence, petitioner is entitled to get employment on compassionate ground. Learned counsel for the petitioner further submitted that impugned judgment may be reviewed/modified as order dated 01.11.2017 passed in L.P.A. No. 558 of 2016, was passed contrary to the fact on record. 5. On the other hand, learned counsel for the State Mrs. (Dr.) Vandana Singh, Sr. SC – III, has stated and submitted that as per the mandates under the persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short, Disability Act), rules were framed by the respondent state vide Memo No. 7281 dated 07.11.2007 and subsequently, vide Memo No. 2249 dated 03.04.2018. Rules contained in Memo No. 7281 dated 07.11.2007 provides that in case of appointment against vacant posts 3% reservation will be given to the persons with disabilities and rules contained in Memo No. 2249 dated 03.04.2018 provides that in case of appointment to the vacant post 4% reservation will be given to the persons with disabilities. The Rules which have been framed under the persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 by the respondent State prescribe for reservation to persons with disabilities only in case of direct appointments against vacant posts and the Rules do not prescribe for any reservations in matters of compassionate appointment. 6. Learned counsel for the State, with respect to para 4 of the supplementary affidavit of the petitioner and petitioner’s reliance on Circular No. 5064 dated 09.07.2018 of Personnel and Administrative Department, Government of Jharkhand, submitted that the claim of appointment of the petitioner on compassionate ground was rejected in the meeting of District Establishment Committee, Hazaribagh held on 08.10.2013.Thus, the chapter of compassionate appointment of the petitioner was already closed on 08.10.2013 and the circular relied upon by the -3- petitioner vide Circular No. 5064 dated 09.07.2018, came into existence five years after the rejection of the claim of the petitioner for compassionate appointment. 7. Learned counsel for the State further submitted that Circular No. 5064 dated 09.07.2018 is based on the judgment dated 20.11.2017 passed in W.P.(S) No. 2818 of 2017 (Kalyani Kumari Mishra v. The State of Jharkhand & Ors.). In that case, the claim for compassionate appointment of the petitioner Kalyani Kumari Mishra was rejected on 18.02.2017 i.e. after coming of the Rules dated 01.12.2015 relating to compassionate appointment and as such the Hon’ble Court had observed that- Restricting operation of the definition of dependent under Clause 4 of 2015 scheme only from 01.12.2015, and not extending the benefit of the new rules to the claimant whose case was considered after 01.12.2015 would certainly defeat the very object of the scheme for compassionate appointment. 8. Learned counsel for the State submitted that it is apparent that the case of the present petitioner is different from the case of Kalyani Kumari Mishra(supra) and similar other cases mentioned in the Circular No. 5064 dated 09.07.2018 relied upon by the petitioner and the same is only applicable in those cases whose claims were not closed on the date of coming into effect of the Rules relating to compassionate appointment. Since, the petitioner’s case had already been closed on 08.10.2013, much before coming of the Rules relating to compassionate appointment which came into force w.e.f 01.12.2015, the petitioner cannot get any benefit from the Circular No. 5064 dated 09.07.2018. 9. Learned counsel for the State in regard to para 5 of the supplementary affidavit of the petitioner submitted that judgment dated 16.08.2018 passed by this Hon’ble Court in L.P.A. No. 196 of 2017 is under challenged before the Hon’ble Supreme Court of India vide SLP (C) No. 003000-/2019 and the same is pending. Further, learned counsel has relied on following cases: 1. State of Himachal Pradesh and Another versus Prakash Chand (2019) 4 Supreme Court Cases 285 2. N.C. Santhosh versus State of Karnataka and others (2020)7 Supreme Court Cases 617 3. Director of Treasuries in Karnataka and another versus V. Somyashree (2021) SCC OnLine SC 704 4. State of Maharashtra and another versus Madhuri Maruti Vidhate (2022) SCC OnLine SC 1327 10. Learned counsel for the State further submitted that as per clause 1(C) of the circular dated 05.10.1991, married daughters were not eligible for -4- appointment on compassionate basis after death of a Govt. servant which was later on modified under clause 4(iii) dated 01.12.2015 in which married daughter became eligible for appointment on compassionate basis with condition that she is not fully dependent on deceased at the time of his death. The petitioner does not qualify the provisions made in the both circulars. The father of the petitioner died on 20.09.2012 and at that time there was no provision for appointment of the married daughter on compassionate basis, hence, her application for compassionate appointment was rejected on 08.10.2013 in the meeting of the District Establishment Committee headed by the Deputy Commissioner Hazaribagh. Thereafter, petitioner filed W.P.(S) 4639 of 2014 before this Hon’ble Court and during pendency of the W.P.S 4639/2014 circular dt. 01.12.2015 came into existence in which married daughter became eligible for compassionate appointment but the married daughter who is not fully dependent on the deceased Govt. servant was excluded from getting advantage of the modified provisions of 2015. After dismissal of W.P(S) 4639 of 2014 by the learned Single Judge, petitioner preferred L.P.A. 558/2016. Petitioner did not state in the said W.P.(S) No. 4639 of 2014 and L.P.A. 558/2016 that she was fully dependent on her deceased father at the time of his death. The Hon’ble Division Bench of this Court in the impugned judgment and order dated 1st November 2017 held that nowhere, it was stated that the petitioner was dependent upon her father as on date of death of her father, hence, this fact oust the candidature of appellant for getting compassionate appointment. REASONS 11. Having heard learned counsel for both the sides, fact emerges that petitioner’s father Ahmad Hussain Mallick, was serving under the respondents as Assistant Sub Inspector (Trainer), who died in harness on 20.09.2012. It appears that Ahmad Hussain Mallick had died leaving behind his widow wife and sole married daughter Zeenat Parween (petitioner herein). After the death of her husband, petitioner’s mother had applied for compassionate appointment of her sole daughter Zeenat Parween (petitioner herein), which was rejected vide order dated 11.11.2013, of the District Establishment Committee, Hazaribagh. Then, petitioner filed WP(S) No. 4639/2014 against the order dated 11.11.2013, of the District Establishment Committee, Hazaribagh, and the order dated 11.11.2013, was challenged by the petitioner mainly on the ground that just because petitioner was married, her claim for compassionate appointment cannot be rejected. This writ petition was heard and dismissed by the learned Single Judge by order dated 06.05.2016. Here, it is pertinent to note that earlier circular dated 05.10.1991, -5- did not provide the compassionate appointment to the married daughter. But,
Decision
during the pendency of the writ petition earlier circular dated 05.10.1991, was amended and a new circular dated 01.12.2015 was issued by the Government of Jharkhand, Personnel, Administrative Reforms and Rajbhasa Department, according to which married women was brought within the definition of dependent. The writ Court had considered the new circular dated 01.12.2015 and noted that amended/new rules dated 01.12.2015 bring within its ambit a married daughter as a dependent of deceased employee with a rider that at the time of death of the employee, the married daughter should be fully dependent on the deceased. Writ Court further found that there was nothing on record to suggest whether the petitioner or her husband, at the time of death of employee, namely, Ahmad Hussain Mallick was dependent on him. Writ Court also noted that during course of argument, it has been submitted that the husband of the petitioner is a businessman. This clearly goes to show that neither the petitioner nor her husband was dependent upon deceased. 12. Against the order dated 06.05.2016, passed in WP(S) No. 4639/2014, L.P.A. No. 558 of 2016 was preferred which was dismissed by order dated 01.11.2017 by a Division Bench of this Court. At para 11 of the judgment, Division Bench, also noted that nowhere it has been stated that this appellant (petitioner herein) was dependent upon her father as on the date of death of her father i.e. 20th September, 2012. Paragraph -11 of the impugned judgment is quoted herein below- ‘’11) it further appears from the facts that nowhere it has been stated that this appellant was dependent upon her father as on the date of death of her father i.e. 20th September, 2012. Such type of legal heir cannot be given compassionate appointment. This aspect of the matter has been properly appreciated by the learned Single Judge while dismissing the writ petition.’’ 13. Regarding argument of learned counsel for the petitioner that petitioner is physically handicapped (42 approx.) and also a graduate and fulfills all the criteria for compassionate appointment in Grade 3 post on compassionate ground, but, arbitrarily, petitioner’s case for compassionate appointment was not considered, in this regard, I find that this issue has already been deicided by the LPA Court at paragraph- 13 of the impugned judgment. Paragraph-13 of the impugned reads as under- ‘’13) Much has been argued out by the counsel for the appellant about 42% disability of this appellant. -6- Such disability is not a ground to get compassionate appointment. The ground to get compassionate appointment is the dependency upon her father as on date of death of her father. Learned counsel for the appellant has not even argued out that this appellant was dependent upon her father as on date of death of her father. Hence, no such compassionate appointment can be awarded to this appellant.’’ 14. In case of Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170, Hon’ble Apex Court, at para 8 has held as under: ‘’It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of AribamTuleshwar Sharma v. Aribam Pishak Sharma [(1979) 4 SCC 389: AIR 1979 SC 1047], speaking through Chinnappa Reddy, J., has made the following pertinent observations: (SCC p. 390, para 3) “It is true as observed by this Court in Shivdeo Singh v. State of Punjab [AIR 1963 SC 1909], there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.” Further in case of Haridas Das v. Usha Rani Banik, (2006) 4 SCC 15. 78, Honble Apex Court at para-13 has held as under: “13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it “may make such order thereon as it thinks fit”. The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing “on account of some mistake or error apparent on the face of the records or for any other sufficient reason”. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulates a rehearing of the dispute because a party had not highlighted all the aspects of the case or could -7- perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. This Court in Thungabhadra Industries Ltd. v. Govt. of A.P. [(1964) 5 SCR 174: AIR 1964 SC 1372] held as follows: (SCR p. 186) “[T]here is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by ‘error apparent’. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. … where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.” 16. Hence, in the light of above judicial decisions, facts and circumstances, we find that neither any error apparent on face of record nor any important matter or evidence which, after the exercise of due diligence was not within the knowledge of the petitioner or could not be produced by the petitioner at the time when order was made, has been brought before this court. In Meera Bhanja case (supra), it has been reiterated that a power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court. No ground has been made by the learned counsel for the petitioner to hear this civil review application. Hence, this civil review application stands dismissed. (Ratnaker Bhengra, J.) (Pradeep Kumar Srivastava, J.) Jharkhand High Court, Ranchi Dated05/01/2024 Umesh/-