Union of India through the Secretary, Ministry of Power, Govt. of v. India, Rafi Marg, Shram Shakti Bhawan, New Delhi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1505 of 2024 Ramnath Prasad, aged about 46 years, son of Late Fagu Mahto, resident of Village- Barki, Dhamrai, P.O.- Tilaiya Dam, P.S.- Jainagar, District- Koderma. … …. Petitioner 1. Union of India through the Secretary, Ministry of Power, Govt. of Versus India, Rafi Marg, Shram Shakti Bhawan, New Delhi. 2. Chairman, Damodar Valley Corporation, DVC Headquarters, DVC Towers, VIP Road, Kolkata. 3. Executive Director (HR), Damodar Valley Corporation, Ultadanga, Kolkata. 4. Director of Soil Conservation, Damodar Valley Corporation, Hazaribag. 5. Additional Director (HR), Soil Conservation Department, Damodar Valley Corporation, Hazaibag. ------ … … Respondents CORAM : HON’BLE DR. JUSTICE S.N. PATHAK For the Petitioner For the Respondents ------ : : -------- Mr. Manoj Tandon, Advocate Mr. Rakesh Kumar Roy, Advocate Mr. Srijit Choudhary, Advocate 12/ 20.12.2024 The writ petition has been filed under Article 226 of the Constitution of India challenging the reasoned order dated 07.01.2021 passed by the Director, Soil Conservation, Damodar Valley Corporation (for short ‘DVC’), whereby though the claim of the petitioner for compassionate appointment has not been rejected, but the same has been delayed on one or other grounds. The Facts. 2. Father of the petitioner Fagu Mahto was employed in DVC and he died in harness on 15.10.2012. As per the Circular bearing No. 483 dated 17.07.1984, there was a provision for compassionate appointment in the DVC to the dependent of the deceased employee. An Office Memorandum dated 22.07.2008 was introduced in DVC, whereby one time lump sum settlement in lieu of compassionate appointment was prescribed. However, it has also been mentioned therein that eligible candidates who will not opt for one time lump sum settlement, their names shall remain in the panel of compassionate appointment. Soon after death of the father of the petitioner, 1 several representations were made either by the petitioner or by the mother of the petitioner claiming compassionate appointment, but nothing happened for next five years and it was only on 10.03.2017 that the claim of compassionate appointment of the petitioner came to be rejected by DVC. The petitioner has brought on record the order of compassionate appointment dated 12.03.2012, whereby one Asha Devi was provided compassionate appointment. The petitioner being aggrieved by the order dated 10.03.2017 filed writ petition, which was registered as W.P.(S) No. 2561 of 2017. This Court after considering all aspects of the matter, allowed
Decision
the writ petition by order dated 05.07.2018 in following terms:- “05.07.2018 The petitioner is aggrieved of order dated 10.03.2017 by which he has been granted compensation of Rs.5 lakhs in lieu of compassionate appointment. 2. Plea taken by the petitioner is that in terms of Office Circular dated 17.07.1984 read with Office Memorandum dated 22.07.2008, dependant of a deceased employee has two options – either to accept compensation of Rs.5 lakhs or to opt for compassionate appointment – and it shall be the decision of the dependant to choose an option and not of the respondent- employer. The petitioner claims that he should be considered for appointment on compassionate ground and the respondent authority has illegally taken a decision on its own that Rs.5 lakhs shall be paid to him as full and final settlement in lieu of compassionate appointment. 3. Facts are not in dispute; petitioner's father died in harness on 15.10.2012 and for his compassionate appointment has been accepted by the respondent-DVC. In the counter-affidavit, the respondents have pleaded that if the petitioner does not opt for compensation of Rs.5 lakhs his name shall remain in the panel of candidates for compassionate appointment and he shall be offered appointment when his turn comes. In view of the stand taken by the respondents in paragraph no.8 of the counter-affidavit, the impugned order dated 10.03.2017 stands quashed. 4. The writ petition stands allowed, in the aforesaid terms.” the application [Emphasis supplied] 3. The respondents being aggrieved by the order dated 05.07.2018 filed letters patent appeal before the Division Bench of this Court, which was registered as L.P.A. No. 446 of 2018. One I.A. No. 10591 of 2018 was filed by the DVC to withdraw the said letters patent appeal. Accordingly, letters patent appeal was dismissed as not pressed. The order of the writ Court, 2 therefore, attained its finality. Despite having lost before the Division Bench, the order was not complied with, as no compassionate appointment was offered to the petitioner. Upon an information under the Right to Information Act, 2005, the petitioner was informed that he is still allowed to remain in the panel of compassionate appointment. This compelled the petitioner again to move this Court by filing writ petition, being W.P.(S) No. 2037 of 2019. In the said writ petition, on 26.06.2019, this Court passed the following orders:- “26.6.2019 ……. Since the order has attained finality due to dismissal of the said LPA, respondents have been left with no option but to comply the earlier order of this Court.” 4. The matter came for final consideration before this Court on 15.10.2020 and this Court disposed of the said writ petition. Last four paragraphs of the said order are profitable to quote herein below:- for the learned counsel “Per contra, Mr. Srijit Choudhary, the that respondent-D.V.C appearing Corporation is acting in terms of scheme. The petitioner is on the panel. His turn has not come as yet. He submits that as soon as the turn of the petitioner will come, the petitioner will be provided compassionate appointment. He further submits that scheme is already there and compassionate appointment has to be governed with that scheme. submits In view of the aforesaid facts and considering the argument of the learned counsel for the parties, it appears that a long queue is there for appointment on compassionate ground. The father of the petitioner died in the year, 2012 and till date, the petitioner has not been appointed on compassionate ground inspite of the scheme. A co-ordinate Bench of this Court in “ Yasoda Mehra” (supra) has ruled for compassionate ground is released each year, the list of candidates prepared each year should be first considered against those vacancies. if vacancy that In the light of aforesaid judgment, the matter is remitted back to the Corporation to take decision in the light of discussion made in para 6 of the said judgment, within 12 weeks from date of receipt/production of a copy of this order. With the aforesaid observation and direction, this writ petition stands disposed of. Pending I.A, if any, stands disposed of.” [Emphasis supplied] 5. The respondent-DVC thereafter passed the order on 3 07.01.2021, which is impugned in the present writ petition. Points raised by the petitioner 6. Mr. Manoj Tandon, learned counsel assisted by Mr. Rakesh Kumar Roy, learned counsel appearing for the petitioner submits that a contempt petition was also preferred before this Court for breach of the order dated 15.10.2020 passed in W.P.(S) No. 2037 of 2019, which was registered as Contempt Case (Civil) No. 77 of 2021. A show cause reply was filed therein by the Director, Soil Conservation and Head of the Project, DVC, Hazaribag, in which it was stated in paragraph-9 that this petitioner has now come at serial no. 1 in the panel for compassionate appointment. It was further stated in paragraph-12 thereof that the name of the petitioner is running at serial no. 1 in the panel. He submits that this affidavit was filed in the month of March, 2022 and despite lapse of more than two years, still the appointment has not been offered to the petitioner, though he is at serial no. 1 in the panel. It is contended that in view of such statement made on oath before this Court, the contempt petition being Cont. Case (Civil) No. 77 of 2021 was disposed of, more particularly because of the reasoned order dated 07.01.2021. But it is pointed out that during pendency of such contempt application, learned counsel appearing for the respondent-DVC submitted that the petitioner has come in the panel of compassionate appointment at serial no.1 and as soon as vacancy will arise, the petitioner would be provided such benefit. This stand was also reiterated by the respondent-DVC on 17.03.2023 also before this Court. In view of these facts, learned counsel for the petitioner submits that once such undertaking was given by the DVC before this Court, now the DVC cannot be permitted to flout the same. It is pointed out by the learned counsel for the petitioner that there is no delay on the part of the petitioner to approach this Court and the petitioner has been approaching this Court right from the year 2017 and at every stage, order was passed in favour of the petitioner, but still the appointment has not been offered despite the DVC lost its appeal being L.P.A. No. 446 of 2018 on 8.1.2018. It is further submitted by Mr. Tandon that the inaction on the part of the respondent-DVC is highly contemptuous, as once the writ petition of the petitioner was allowed by order dated 4 5.7.2018 passed in W.P.(S) No. 2561 of 2017, the respondent-DVC is duty bound to offer appointment to the petitioner, as the same attained its finality in view of letters patent appeal being dismissed on 8.1.2019. Learned counsel further submits that arbitrariness on the part of the respondent-DVC is writ large in the facts of the present case, as one or other orders passed by this Court have not been respected to by the respondent-DVC on one or other flimsy grounds. It is further submitted that it has never been the case of the respondent-DVC that the petitioner is not entitled for compassionate appointment. On the contrary, every time, the stand taken by the respondent-DVC is that the petitioner is in the panel and he will get the appointment as soon as vacancy arises. It is further submitted that since the petitioner stood at serial no. 1, as has been admitted by the respondent- DVC, the respondent-DVC is duty bound to offer compassionate appointment to the petitioner without any further delay. It is submitted that though the petitioner has been running from pillar to post, but the delay has been caused at the instance of the respondent-DVC for no fault of the petitioner and the delay is not attributable to the petitioner as is evident from the facts of the present case. In view of above submissions, learned counsel submits that the writ petition deserves to be allowed by granting all the reliefs. Stand of the respondent-DVC 7. Mr. Srijit Kumar Choudhary, learned counsel appearing for the respondent-DVC submits that it is not in dispute that the petitioner is at serial no.1 in the panel of compassionate appointment. He further submits that the petitioner will get the compassionate appointment as and when vacancy arises. Learned counsel further submits that the respondent DVC has kept the petitioner in the panel for compassionate appointment that too at serial no.1. It is further submitted by Mr. Srijit Choudhary, learned counsel for the DVC that the petitioner is at liberty to get Rs. 15,00,000/- in lieu of compassionate appointment, but if the petitioner still choses to get compassionate appointment, he has to wait. In nutshell, learned counsel for the respondent does not dispute that the petitioner is entitled for compassionate appointment, but for want of vacancy, such appointment has 5 not been offered yet despite lapse of 12 years from the date of death of his father. He, however, submits that compassionate appointment is not a right, but as and when vacancy arises, the petitioner will get such appointment. 8. Besides, the above admitted position, Mr. Choudhary, learned counsel submits that the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. In the present case, now twelve years have passed for one or other reasons and thus, the compassionate employment cannot be claimed after the crisis is over. In support of his contentions, learned counsel places heavy reliance on the judgments of the Hon’ble Apex Court in the cases of Umesh Kumar Nagpal Vs. State of Haryana, (1994) 4 SCC 138, State of Himachal Pradesh & Anr. Vs. Shashi Kumar (2019) 3 SCC 653, Union of India Vs. Bhagwan, (1995) 6 SCC 436 and Harayan State Electricity Board Vs. Naresh Tanwar, (1996) 8 SCC 23. Analysis 9. I have heard the learned counsel for the parties. Perused the materials on record. This Court after considering rival submissions of the learned counsel for the parties is of the view that the impugned order cannot be sustained in the eyes of law and the petitioner is entitled for compassionate appointment for the following facts and reasons:- (i) It is true that compassionate appointment and the Scheme thereof does not give the indefeasible right to get the appointment. But, it is equally true that if there is a scheme for compassionate appointment, the employer is duty bound to follow the same and offer compassionate appointment as per the Scheme. It has not been disputed that the petitioner is claiming anything beyond the Scheme of the compassionate appointment. In fact, it is the case of the respondent-DVC that this petitioner is entitled for compassionate appointment and his position has also come at serial no.1 in the panel of compassionate appointment. Very strange ground has been taken at this stage that there is no vacancy. This Court is of the view that vacancy arose on the date when the father of this petitioner died. It cannot be believed that for last 12 years, there is no vacancy in the 6 DVC. It has been recorded on 30.08.2024 in the present writ petition by a Coordinate Bench of this Court itself that earlier the position of this petitioner was at serial no. 69 and now the same has come at serial no.1. The Coordinate Bench has further recorded the submission of the learned counsel for the respondent-DVC to the effect that delay would not cause any hindrance in the peculiar facts of the present case. Every time either in the writ petition or in the contempt application, the stand that was taken by the respondent- DVC is that the petitioner would be offered appointment, but the fact remains that still appointment letter has not been given to the petitioner. This smacks something else. (ii) The Coordinate Bench of this Court has recorded the undertaking in the order dated 14.10.2022 passed in Cont. Case (Civil) No. 77 of 2021, in following terms:- “14.10.2022 Mr. Srijit Choudhary, learned counsel appearing for the O.P. Nos. 2 to 4 submits that now the petitioner has come in the compassionate appointment panel at serial No. 1 and as soon as vacancy will appear, the petitioner will be provided such benefit. In view of such submissions, let this matter appear after four weeks on the assigned day.” [emphasis supplied] In view of the aforesaid stand taken by the respondent-DVC, the respondent-DVC is duty bound to offer appointment to the petitioner. (iii) The Coordinate Bench of this Court has further recorded in its order dated 17.03.2023 passed in Cont. Case (civil) no. 77 of 2021 as follows:- “17.03.2023 Mr. Anil Kumar Sinha, learned senior counsel along with Mr. Srijit Choudhary appear on behalf of the Damodar Valley Corporation. Mr. Saurabh Shekhar, learned counsel for the petitioner submits that previous order passed in this the contempt petition suggests petitioner has come in compassionate appointment panel at Serial no.1, but till date, such appointment has not been provided to the petitioner. the name of that The retirement etc. is being taken every month in every department. Why the petitioner has not been 7 provided compassionate appointment when he has already come at Serial no.1 in view of affidavit filed by the opposite party-DVC in March, 2022. In view of this background, the opposite parties shall file affidavit within two weeks. Let it appear after two weeks on the assigned day.” [emphasis supplied] (iv) Despite such observations made by Coordinate Bench of this Court, the respondent-DVC has been flouting such orders. In such situation, this Court is constrained to observe that the stand of the respondent- DVC before this Court is misleading. On one hand at every time, it is said by the respondent-DVC that the petitioner shall be offered compassionate appointment, but the fact remains that he has not been offered appointment for last twelve years on one or other flimsy grounds. It appears that the respondent-DVC has no respect for the orders passed by this Court time to time. This observation is being made in view of the glaring facts of the case. (v) The writ petition of this petitioner was allowed as back as on 5.7.2018 passed in W.P.(S) No. 2561 of 2017, which has also been quoted herein above. The respondent-DVC challenged such order before the Division Bench, but lost by order dated 8.1.2019 passed in L.P.A. No. 446 of 2018. Despite this, the fact remains that the respondent-DVC has not bothered to comply the order passed by the writ Court on 5.7.2018 in W.P.(S) No. 2561 of 2017. Every time the respondent-DVC compelled this poor petitioner to knock the door of this Court so that the petitioner succumbed to the pressure of the respondent-DVC. This cannot be appreciated at all. (vi) This Court has perused the show cause reply filed by the respondent- DVC in Cont. Case (Civil) No. 77 of 2021, which is placed on record at Annxure-15 series. The following statements are made in paragraph nos. 9 and 12 thereof:- “9. That the opposite party very humbly states and submits that the petitioner’s case for compassionate appointment as on today stands in Sr. No. 1 in the panel. 12. That in the above circumstances at present the petitioner’s name is running in Serial No. 1 of the panel.” 8 The aforesaid affidavit is of the March, 2022. Despite such stand on oath by the respondent-DVC, the petitioner has not been offered compassionate appointment yet. The respondent-DVC is duty bound to abide by the undertakings given before this Court on oath. (vii) This Court has further perused the Office Memorandum dated 27th October, 2022, which has been brought on record, by way of counter affidavit filed by the respondent-DVC. Paragraph-5 thereof reads thus:- “5. To settle the old pending cases of employment / compensation in lieu of employment in a phased manner based on seniority criterion reckoned on the basis of date of death i.e. the employee who died first will be treated as senior to someone who died later.” In view of the aforesaid policy of the respondent-DVC, the petitioner is entitled for compassionate appointment. (viii) It is true and what has been laid down by the Hon’ble Apex Court in the celebrated judgment rendered in the case of Umesh Kumar Nagpal (supra) and other cases relied by the respondents that the object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood and it cannot be granted after lapse of time when the crisis is over. But the fact of the present case is entirely different, as has been argued by the learned counsel for the petitioner and not disputed by the respondent- DVC. Herein, the petitioner is running from pillar to post to get rid of financial crisis which he faced from the time of death of his father and the respondent-DVC is sitting tight over the matter for one or other grounds and actually, the respondent-DVC is pressurizing the petitioner to succumb his grievance. Purposely delay is being caused by the respondent-DVC to frustrate the claim of the petitioner. The delay in the present case has been caused solely at the instance of the respondent-DVC and not at the instance of the petitioner. It is well settled that if the delay in the matter for compassionate appointment 9 is caused at the instances of the respondent-employer, the same cannot be fatal of the case of petitioner for compassionate appointment. At this stage, the refusal on the part of the respondents for compassionate appointment on the ground of inordinate delay is not countenanced. (ix) The similar issue fell for consideration before the Hon’ble Apex Court in the case of Malaya Nanda Sethy Vs. State of Orissa & Ors., reported in 2022 SCC OnLine SC 684, wherein the Hon’ble Apex Court has been pleased to observe that in several cases, applications for appointment on compassionate grounds are not attended in time and are kept pending for years together and in several cases, the applicants have to approach the concerned High Courts seeking a writ of mandamus and even after such a direction is issued, frivolous or vexatious reasons are given for rejecting the applications. The Hon’ble Apex Court further directed that such applications must be considered at an earliest point of time and the application cannot be rejected on the basis of frivolous and for extraneous reasons. The relevant paragraphs-16 to 18 are quoted herein below:- “16. Before parting with the present order, we are constrained to observe that considering the object and purpose of appointment on compassionate grounds, i.e., a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service and the basis or policy is immediacy in rendering of financial assistance to the family of the deceased consequent upon his untimely death, the authorities must consider and decide such applications for appointment on compassionate grounds as per the policy prevalent, at the earliest, but not beyond a period of six months from the date of submission of such completed applications. 17. We are constrained to direct as above as we have found that in several cases, applications for appointment on compassionate grounds are not attended in time and are kept pending for years together. As a result, the applicants in several cases have to approach the concerned High Courts seeking a writ of Mandamus for the consideration of their applications. Even after such a direction is issued, frivolous or vexatious reasons are given for rejecting the applications. Once again, the applicants have to challenge the order of rejection before the High Court which leads to pendency of litigation and passage of time, leaving the family of the employee who died in harness in the lurch and in financial difficulty. Further, for reasons best known to the authorities and on irrelevant considerations, applications made 10 for compassionate appointment are rejected. After several years or are not considered at all as in the instant case. 18. If the object and purpose of appointment on compassionate grounds as envisaged under the relevant policies or the rules have to be achieved then it is just and necessary that such applications are considered well in time and not in a tardy way. We have come across cases where for nearly two decades the controversy regarding the application made for compassionate appointment is not resolved. This consequently leads to the frustration of the very policy of granting compassionate appointment on the death of the employee while in service. We that such applications must be have, considered at an earliest point of time. The consideration must be fair, reasonable and based on relevant consideration. The application cannot be rejected on the basis of frivolous and for reasons extraneous to the facts of the case. Then and then only the object and purpose of appointment on compassionate grounds can be achieved.” therefore, directed In view of the above law laid down by the Hon’ble Apex Court, the stand taken by the respondent-DVC has no legs to stand. The stand of the respondent-DVC in the present case is absolutely arbitrary, illegal and frivolous. Conclusion 10. In view of the aforesaid discussions, the impugned reasoned order dated 7.1.2021 (Annexure-13 to the writ petition) stands quashed and set aside. The respondent-DVC is directed to offer compassionate appointment to the petitioner within a period of six weeks from today. In case, there is no vacancy right now, a supernumerary post shall be created and the petitioner shall be appointed on such post. This direction is being given in the peculiar facts of the case, as the writ petition was allowed firstly by this Court on 5.7.2018 itself in W.P.(S) No. 2561 of 2017 and same remained un-complied with at the hands of the respondent-DVC. Let it be made clear that this order shall not be treated as precedent. 11. Resultantly, the writ petition stands allowed. There has been no order as to costs. R.Kr. (Dr. S. N. Pathak, J.) 11