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HIGH COURT OF CHHATTISGARH AT BILASPUR
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SINGLE BENCH: HON'BLE SHRI JUSTICE SANJAY K. AGRAWAL. ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
WRIT PETITION (S) No. 2881/2013
PETITIONER
Komal Prasad Dhruv Versus
RESPONDENTS
State of Chhattisgarh and others (WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA)
Present:
Mr. R.R. Soni, Advocate on behalf of Mr. Samir Singh, Advocate for the petitioner. Mr. Y.S. Thakur, Deputy Advocate General and Mr. Ajit Singh, P.L. for the State/respondents No. 1 to 4 & 7.
None for respondents No. 5 & 6 though served. O R D E R
(Passed on 31/10/2014) 1.
Petitioner’s father Shri Shyam Lal Dhruv working on the post of Assistant Gram Panchayat Officer, Gram Panchayat Gadamor, Janpad Panchayat Navagarh, District Durg, died in harness on 06/01/2007. Petitioner herein being son made an application in prescribed format on 12/03/2007 (Annexure P­3) for grant of compassionate appointment to the Deputy Director, Panchayat and Social Welfare, District Durg (respondent No. 3 herein). The respondent No. 3 forwarded the said application to the Chief Executive Officer, Janpad Panchayat Navagarh, District Durg (respondent No. 6 herein) for necessary action. The respondent No. 6 2
sent all the documents to the respondent No. 3 and also sent the original papers to the Chief Executive Officer, Zila Panchayat, Durg (respondent No. 5 herein) stating that since the salary of the deceased­ Late Shri Shyam Lal Dhruv was drawn from the Office of the Chief Executive Officer, Janpad Panchayat Navagarh, District Durg, therefore, it is being sent to him as the services of Assistant Gram Panchayat Officer has already been handed over to Janpad Panchayat on 18/08/2006, and request earlier made was reiterated by order dated 03/09/2007 (Annexure P­7) and in turn, the respondent No. 6 sent the matter to the Collector Durg (respondent No. 4 herein) for taking decision on his application in accordance with law and copy was endorsed to respondent No. 5 for needful action. The said application remained pending in the Office of respondent No. 4 leading to issuance of reminder by respondent No. 6 to the respondent No. 5 dated 03/12/2010 (Annexure P­10) for taking decision on the application filed by the petitioner but no decision was taken by competent authority i.e. Collector Durg, respondent No. 4. 2.
Ultimately, the petitioner filed W.P.(S) No. 4012/2011 (Komal Prasad Dhruv v. State of C.G. and Others) before this Court, seeking expeditious consideration of his application for compassionate 3
appointment in which, it was directed by order dated 26/07/2011 to the respondent No. 4 i.e. Collector Durg to decide the case of the petitioner relating to compassionate appointment in accordance with law as expeditiously as possible, which was brought to the notice of respondent No. 4 by petitioner through application dated 08/08/2011 (Annexure P­12). 3.
Thereafter, the respondent No. 4 took two years in considering the application and finally by its order dated 01/07/2013 placing reliance on circular issued by the State Government dated 03/03/2011 and the executive instructions relating to compassionate appointment issued on 14/06/2013 held that petitioner’s case is time barred, as he has not made an application within three months from the date of death of his father and sent the original application to the Deputy Director, Panchayat and Social Welfare, District Durg (respondent No. 3 herein) with a copy to the petitioner. 4.
Impugning the legality and validity of the order rejecting his claim for compassionate appointment, petitioner has filed instant writ petition seeking an appropriate writ for quashment of order dated 01/07/2013 (Annexure P­1) stating that he is entitled for compassionate appointment on the basis of 4
policy/circular, which was in existence on the date of death of his father, that is 06/01/2007 and the application was made for compassionate appointment on 12/03/2007 and as such, the application was well within time as prescribed in the policy/circular dated 01/05/2000, 15/12/2000 and 02/02/2006 and has sought an appropriate writ directing the State Government to consider his case for compassionate appointment strictly in view of the policy/circular, which was in existence at the time of death of his father and date of submission of his application.
5.
The respondents/State has filed its return stating that the petitioner’s father was an employee of Janpad Panchayat Navagarh, therefore, the petitioner was required to submit his application for appointment on compassionate ground before the competent authority. The State has further pleaded that as per Clause­15(2) of the circular dated 14/06/2013, the dependants of the deceased employee are required to submit their application in the prescribed format for being appointed on compassionate ground within a period of three months to the Head of the Department, where deceased employee was working. In the present case, petitioner has failed to make an application to the competent authority i.e. Chief Executive Officer, Janpad Panchayat Navagarh 5
(respondent No. 6 herein), whereas he has submitted his application before the Deputy Director, Panchayat and Social Welfare (respondent No. 3 herein), who was not competent authority to take the decision on the application of the petitioner, therefore, his application for compassionate appointment has rightly been rejected by the respondent No. 4, therefore, writ petition deserves to be dismissed.
6.
No return has been filed on behalf of the Chief Executive Officer, Janpad Panchayat Navagarh (respondent No. 6 herein) though, Janpad Panchayat has been duly served with the notice issued by this Court.
7.
Appearing for the petitioner Mr. R.R. Soni, learned counsel would submit that petitioner’s father was posted in the office of Deputy Director, Panchayat and Social Welfare, District Durg (respondent No. 3 herein) as Assistant Gram Panchayat Officer on 06/01/2007 when he died in harness, therefore, the petitioner has made an application in prescribed format within time i.e. on 12/03/2007 to the respondent No. 3 , who sent the application to respondent No. 6 for considering his application elaborating his submission. He would further submit that the petitioner is entitled to be considered in 6
accordance with policy/circular, which was prevalent at the time of the death of his father, as the executive instructions/policy/circular issued on 13/03/2011 and 14/06/2013 relating to compassionate appointment cannot be made applicable retrospectively to the petitioner's case and would conclude his submission by submitting that an application was made right in time and, therefore, the impugned order considering the case of the petitioner on the basis of the new policy/circular and rejecting the application as barred by limitation is clearly unsustainable in law, consequently, impugned order rejecting his case for compassionate appointment deserves to be quashed.
8.
Appearing for the State/respondents No. 1 to 4 & 7 Mr. Y.S. Thakur, learned Deputy Advocate General would submit that the services of the petitioner’s father having been transferred to the Office of Janpad Panchayat by order dated 08/08/2006, it was incumbent on the part of the petitioner to file a duly constituted application for compassionate appointment to respondent No. 6, which he failed to submit. He would further submit that petitioner’s case suffers from delay and laches, as he could not make an application within time, therefore, his case for compassionate appointment has rightly been rejected by the respondent No. 4 herein. 7
9.
I have heard learned counsel appearing for the parties and considered their rival submission made herein and also gone through the record with utmost circumspection. 10.
It is not in dispute that petitioner’s father was working on the post of Assistant Gram Panchayat Officer (Class­III Officer) and on the date of his death, he was posted in the Office of Deputy Director, Panchayat and Social Welfare (respondent No. 3 herein). It is also not in dispute that he was original employee of the said department and only few months prior to his death, on 18/08/2006, the services of the Assistant Gram Panchayat Officers (including petitioner’s father) were handed over to the concerned Janpad Panchayat. Memo. (Annexure P­7) issued by Deputy Director, Panchayat and Social welfare, District Durg on 03/09/2007 would show that the services of the Assistant Gram Panchayat Officer were transferred to Janpad Panchayat on 18/08/2006 and they were relieved on 13/02/2007. Thus, prior to the actual transfer of services to Janpad Panchayat petitioner’s father died on 06/01/2007, therefore, neither petitioner nor petitioner’s father had knowledge about the order dated 13/02/2007 reliving the services of Assistant Gram Panchayat Officer including the petitioner's father to Janpad Panchayat. Thus the 8
petitioner has rightly made an application to the Deputy Director, Panchayat and Social Welfare (respondent No. 3 herein) within six months from the date of death of his father for compassionate appointment. Thus the submission raised by the respondent­State in this regard is rejected. 11.
The circular dated 02/02/2006 issued by State of Chhattisgarh provides a period of six months for making an application for compassionate appointment from the date of death of concerned Government servant, it states as under:­
3- orZeku funsZ’kksa esa e`rd 'kkldh; lsodksa ds vkfJr dks vuqdaik fu;qfDr ds
fy;s vkosnu izLrqr djus ds fy, dksbZ le; lhek fu/kkZfjr ugha gSA vr% vuqdaik
fu;qfDr funsZ’k dh dafMdk **3 ¼9½& vuqdaik fu;qfDr dh izfdz;k** esa dafMdk 3 ¼9½ 2
ds ckn uohu izko/kku 3 ¼9½ 3 fuEukuqlkj lfEefyr fd;k tkrk gS%&
**3 ¼9½ 3 vuqdaik fu;qfDr gsrq fu/kkZfjr vkosnu i= fnoaxr 'kkldh; lsod
ds ifjokj ds vkfJr lnL; }kjk 'kkldh; lsod dh e`R;q fnukad ls 6 ekg
dh le; lhek ds Hkhrj izLrqr fd;k tk ldrk gSA bl le; lhek ds
i'pkr~ izLrqr vkosnu i= fopkj ;ksX; ugha gksxkA**
12.
The aforesaid circular was modified by circular dated 07/03/2011, paragraphs­ 1 & 2 of the said circular states as under:­
**1- 'kkldh; lsodksa dh vlkef;d e`R;q gksus ij muds vkfJr ifjokj ds
lnL; dks vuqdaik fu;qfDr nsus ds laca/k esa bl foHkkx }kjk tkjh fd, x, lanfHkZr
ifji=ksa dk voyksdu djssaA lanfHkZr ifji= fnukad 02-02-2006 dh dafMdk&3 esa]
vuqdaik fu;qfDr ds funsZ’kksa ls lacaf/kr bl foHkkx ds ifji= fnukad 10-06-2003 esa
uohu dafMdk 3 ¼9½ 3 tksM+h xbZ gS ftlesa ;g izko/kku gS fd fnoaxr 'kkldh; lsod
ds ifjokj ds vkfJr }kjk vuqdaik fu;qfDr gsrq fu/kkZfjr izi= esa vkosnu i= 'kkldh;
lsod dh e`R;q fnukad ls 06 ekg dh le;&lhek ds Hkhrj izLrqr fd;k tk ldrk gS
,oa bl le;&lhek ds i'pkr~ izLrqr vkosnu i= fopkj ;ksX; ugha gksxkA
2- jkT; 'kklu ds /;ku esa ;g ckr vkbZ gS fd vuqdaik fu;qfDr ls lacaf/kr
dbZ izdj.k fofHkUu foHkkxksa esa yafcr gS ,oa ;ksX;rk j[kus okys dbZ vkosndksa ds
vkosnu i= fu/kkZfjr le;kof/k esa izLrqr u gksus ds dkj.k fujLr fd, tkrs gSA vr%
bl fLFkfr ij lexz :i ls ,oa lgkuqHkwfriwoZd fopkjksijkar jkT; 'kklu }kjk fy,
x, fu.kZ; ds vuqlkj vuqdaik fu;qfDr gsrq vkosnu izLrqr djus dh fu/kkZfjr 06 ekg
dh le;&lhek dks c<+k;k tkdj] rhu o"kZ fd;k tkrk gSA ;g fu.kZ; bl ifji= ds
tkjh gksus dh frfFk ls ykxw ekuk tk,xkA**
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13.
Thereafter, circular dated 14/06/2013 issued by the State of Chhattisgarh states as under:­ **15- vuqdaik fu;qfDr dh izfdz;k-& ¼1½ * * * *
¼2½ vuqdaik fu;qfDr ,oa vkosnu ds iz:i laca/kh tkudkjh vkfJr ifjokj dks
izkIr gksus ds mijkUr ik= o;Ld lnL; }kjk vuqdaik fu;qfDr gsrq fu/kkZfjr izk:i es
vkosnu&i= 'kh?kzkfr’kh?kz vf/kdre rhu ekg ds Hkhrj ml dk;kZy; izeq[k dks izLrqr
fd;k tk,xk] ftl dk;kZy; esa fnoaxr 'kkldh; lsod viuh e`R;q ds iwoZ dk;Zjr
FkkA dk;kZy; }kjk vkosnu&i= dh ikorh vkosnd dks nh tk,xhA**
14.
The circular dated 02/02/2006 clearly provides the application in prescribed format by the dependants have to be made within six months from the date of death of deceased employee before the Head of Department, where deceased Government employee was working.
15.
Admittedly and undisputedly, petitioner’s father died on 06/01/2007 and the petitioner has made an application to Head of Department i.e. Deputy Director, Panchayat and Social Welfare (respondent No. 3 herein) on 12/03/2007 under which petitioner’s father was working and posted at the time of death, that was within the time prescribed under circular dated 02/02/2006. Even otherwise, the application made by petitioner to other authorities reached to respondent No. 6, who is said to be competent authority for compassionate appointment vide Annexure P­4 dated 25/06/2007, before completion of six months as prescribed in circular dated 02/02/2006. 16.
The petitioner had sought for appointment for 10
compassionate ground, when the executive instructions dated 02/02/2006 was in­force, which prescribes for six months time for making an application by the dependants of the deceased Government employee. His case therefore, was required to be considered in terms of the circular dated 02/02/2006, which was in existence in the year 2007 and subsequent circular dated 14/06/2013 (Annexure R­1) providing period of three months for making such an application by dependants of Government servant cannot be made applied retrospectively.
17.
In a decision in Abhishek Kumar v. State of Haryana and others1, their Lordships of the Supreme Court has clearly held that the application for compassionate appointment is required to be considered in terms of the rule, which were in existence at the time of death of the concerned Government employee. 18.
In a decision in Govind Prasad v. R.G. Parsad and others2, it has been held by their Lordship of Supreme Court that an executive order of the Government cannot be made operative with retrospective effect. The Paragraph 11 of report states as under:­
“11. ­­­­­It is settled law that an executive order of the Government cannot be made operative with retrospective effect. ….”
1
2
(2006) 12 SCC 44
(1994) 1 SCC 437 11
11
19.
Judging the correctness of impugned order passed by Collector Durg (respondent No. 4 herein), keeping in view the law laid down by their Lordships of the Supreme Court, it would appear that petitioner made an application for compassionate appointment in accordance with circular dated 02/02/2006 to the Head of the Department i.e. Deputy Director, Panchayat and Social Welfare (respondent No. 3 herein), on 12/03/2007, which was ultimately reached to the Zila Panchayat, (respondent No. 6 herein) within a period of six months as provided in circular dated 02/02/2006 and therefore, relying upon the policy/circular issued thereafter on 07/03/2011 and circular dated 14/06/2013 issued subsequently petitioner cannot be denied compassionate appointment holding that his case for compassionate appointment is barred by limitation as prescribed by circular dated 07/03/2011 and 14/06/2013.
20.
On the basis of foregoing analysis, it is held that the dependants of the deceased Government employee are entitled to be considered in accordance with prevalent policy/circular relating to compassionate appointment on the date of the death of Government
servant
as
the
executive instructions/policy of the Government relating to compassionate appointment cannot be made operative 12
with retrospective effect.
21.
At this stage, it is apposite to notice the authoritative decision rendered by Supreme Court, in Smt. Sushma Gosain and others v. Union of India and others3, in which their Lordships have clearly held that all claims for appointment on compassionate grounds, there should not be any delay in appointment taking into consideration the object of such appointment and further held that it is improper to keep such case pending for years. The relevant paragraphs of report states as under:­ “9. We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.”
11. The appellants are entitled to their costs which we quantify at Rs.15,000 and it shall also be paid within three weeks. 22.
If the facts of the present case is examined, it would emerge, that petitioner's application for appointment on compassionate ground made on 12/03/2007 came to be decided finally only on 01/07/2003 by the 3
(1989) 4 SCC 468
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State Authorities/Collector­Durg taking approximately six years time, ignoring binding mandate of Supreme Court in Smt. Sushma Gosain (supra) and direction issued by this Court to decide the petitioner's case, expeditiously on 26/07/2011, which is contrary to the object and purpose of compassionate appointment to give succor to the family to take over the sudden financial crisis. I must express my disapproval of the way in which the State Authorities have dealt with the claim of the petitioner relating to compassionate appointment and took six years time in taking a final decision. 23.
As a fallout and in consequence of aforesaid discussion, the writ petition is allowed. The impugned order dated 01/07/2013 (Annexure P­1) passed by Collector Durg (respondent No. 4 herein) is hereby quashed. The respondent No. 4 is directed to reconsider the petitioner’s application for grant of appointment on the compassionate ground in accordance with policy/circular, which was prevalent at the time of death of his father on its own merit within forty ­five days from today. 24.
The petitioner is entitled to cost quantified at Rs.15,000/­, which will be paid to the petitioner within four weeks. The respondent­State is at liberty 14
to recover the cost from erring officials. JUDGE
Tiwari
15
Head­Note
Application for compassionate appointment has to be considered on the basis of circular/policy prevalent on the date of death of the Govt. Servant. vuqdaik fu;qfDr ds vkosnu dks 'kkldh; deZpkjh dh e`R;q ds fnukad
ij ykxw lDZ;wyj@uhfr ds vk/kkj ij fopkj fd;k tkuk pkfg,A
(Yogesh Tiwari)
P.S. to His Lordship
Hon'ble Mr. Justice Sanjay K. Agrawal
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HIGH COURT OF CHHATTISGARH AT BILASPUR
SINGLE BENCH: HON’BLE SHRI JUSTICE SANJAY K. AGRAWAL
WRIT PETITION (S) No. 2881/2013
PETITIONER
Komal Prasad Dhruv Versus
RESPONDENTS
State of Chhattisgarh and others O R D E R
Post for order: /10/2014
JUDGE /10/2014 17