WRIT PETITION NO. 6281 OF 2017

5th February 2020

Petitioner Counsel: Mrs. Maira A. Syed
Respondent Counsel: Shri A. M. Joshi Mrs. P. S. Chaudhari Shri A. R. Sambre

Cases Cited :
Paras 5, 7: Haryana State Electricity Board and another Vs. Hakim Singh, (1997) 8 SCC 85
Paras 5, 8: State of J & K and others Vs. Sajad Ahmed Mir, (2006) 5 SCC 766
Paras 5, 9: Chief Commissioner, Central Excise and Customs, Lucknow and others Vs. Prabhat Singh, (2012) 13 SCC 412
Para 9: Director of Education (Secondary) and another Vs. Pushpendra Kumar and others, (1998) 5 SCC 192

JUDGEMENT

Ravindra V. Ghuge, J.

1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2. Petitioner No.1 is the son of the deceased Class-IV employee – Vitthal Kale, who died while in service with respondent Nos.2 & 3. Vitthal Kale passed away on 12/02/2001. Petitioner No.1 became 18 years of age on 09/06/2013.

3. Petitioner No.2 is the elder sister of petitioner No.1. She became 18 years of age on 18/03/2005. It is stated that the mother of the petitioners renounced home prior to the demise of her husband Vitthal Kale. There are two more younger sisters, who are together with the petitioners and all four of them have been rendered orphans, at a very early age.

4. We have considered the strenuous submissions of the learned Advocates for the respective sides and the learned A.G.P. on behalf of the State. We have perused the affidavit-in-reply submitted by the respondent-University and the documents placed before us.

5. The learned Counsel for the University has relied upon the following judgments :
i. Haryana State Electricity Board and another vs. Hakim Singh – (1997) 8 SCC 85.
ii. State of J & K and others vs. Sajad Ahmed Mir – (2006) 5 SCC 766.
iii. Chief Commissioner, Central Excise and Customs, Lucknow and others vs. Prabhat Singh - (2012) 13 SCC 412.

6. Having considered the strenuous contentions of the litigating sides, we find that the following factors need to be considered :-
i. The permanent employee of the University, Vitthal Kale passed away on 12/02/2001.
ii. The wife of the deceased deserted the four children and her whereabouts are not known.
iii. Petitioner No.2 is the elder sister, who became 18 years of age on 18/03/2005, after four years of the demise of her father.
iv. Petitioner No.1 became 18 years of age on 09/06/2013, after 12 years and 4 months of the demise of his father.
v. There are two more younger sisters, who are dependent upon the brother.
vi. The eldest sister applied for compassionate appointment on 30/09/2006, when she was 19 years and 6 months old. It is informed that she has now married and does not take care of the brother and the two younger sisters. By communication, dated 01/02/2014, the University informed the eldest sister that her application cannot be considered as it was beyond the prescribed period of one year and was delayed by six months and, therefore, her request that her brother may be considered as he has become an adult, was agreed upon. Her name was, therefore, deleted with leave to consider the claim of the brother.
vii. The Associate Professor of the Agriculture Research Centre at Achalpur was directed by communication dated 01/02/2014 to appraise petitioner No.1 about filing of the application for compassionate appointment and to ensure that the application is prepared within the prescribed time.
viii. The Associate Professor ignored the said direction and left petitioner No.1 in the lurch.
ix. Petitioner No.1 applied on 25/03/2015, which is after 13 months from the date of the communication viz. 01/02/2014. This application is said to be pending and the University did not decide the said application, much less convey any decision to the petitioner.
x. It is now 19 years since the death of Vitthal Kale.

7. In the case of Haryana State Electricity Board (supra), as is rightly submitted by the learned Advocate for the University that rejection of a request for compassionate appointment after 14 years from the death of the person, cannot be faulted. In the said case, the son of the deceased was a minor. After he became an adult, he did not make an application within the prescribed time and the Hon’ble Apex Court concluded that if the family members of the deceased employee can manage to survive for 14 years after his death, the object of providing succour to the family to tide over the sudden financial crises befallen on the dependent, due to the untimely death of the bread-earner, would not survive.

8. In the case of State of J & K (supra), the Hon’ble Apex Court held that the applicant had belatedly moved the application after 4½ years and though he had knowledge of the rejection of his application, he kept silent and did not initiate any action. After three years of such rejection, he had filed a writ petition. It was held that such applications cannot be entertained because the purpose of granting compassionate appointment is lost. In the other case cited by the learned Advocate for the University, the Hon’ble Apex Court has taken the same view and has held that such applications deserve to be rejected, as the family survived for many years after the demise of the bread-earner.

9. The object of providing compassionate appointment to the eligible member of the deceased’s family, was also considered by the Hon’ble Apex Court in the matter of Director of Education (Secondary) and another vs. Pushpendra Kumar and others – (1998) 5 SCC 192 and it was concluded that applications after several years of the demise of the earning member, for seeking compassionate appointment, need not be considered. Same is the view taken in the case of Chief Commissioner, Central Excise and Customs, Lucknow (supra).

10. In the above backdrop, we are aware that the law would not assist the petitioners. However, we find the following factors, which can be said to be distinguishing features in this case :-
(a) The mother of the four minor children (one brother and three sisters) deserted the children and her whereabouts are not known, thereby rendering these four minors as orphans.
(b) Though the eldest sister made an application on 30/09/2006 after she gathered knowledge of the policy of compassionate appointment and since the University had not followed the Government Resolution, dated 23/08/1996, mandating the University Office to immediately contact the family of the deceased employee and educate them about the availability of compassionate appointment, her application was rejected and it was only on 01/02/2014 that she was informed that her application cannot be entertained.
(c) This communication from the University was the first response from the side of the University in response to the application of the eldest sister, dated 30/09/2006 after eight years, when she submitted a reminder on 30/12/2013 and thereafter a hearing took place on the same date.
(d) By the communication, dated 01/02/2014, the sister was informed that she made request for considering her brother for compassionate appointment and her name would stand deleted from the compassionate appointment wait list.
(e) Vide the said communication, dated 01/02/2014, the Associate Professor of the Agriculture Research Center, Achalpur, the area of residence of the petitioners, was directed to inform petitioner No.1-brother to make an application for compassionate appointment within the prescribed period and the duty was cast upon the said Associate Professor to ensure that the application is received within time.
(f) It clearly appears that the Associate Professor did not discharge his obligation and petitioner No.1 filed his application on 25/03/2015, which was delayed by about six months from the date of deletion of the name of his sister from the list on 01/01/2014.
(g) Petitioner No.1 is now searching for a job and is working as a labourer as and when any work is available to him.
The two younger sisters, who were toddlers when the father passed away, are residing with the brother and there is no regular source of income.

11. We, therefore, find that when the Associate Professor was specifically cast with the duty of informing petitioner No.1- Roshan that he is eligible for compassionate appointment and when the said Associate Professor failed to ensure that the application was prepared and accepted within a period of one year, petitioner No.1 apparently was left in the lurch. It is on these peculiar facts of this case that we find that petitioner No.1 was unable to file his application within limitation. Even today, petitioner No.1 and his two younger sisters are said to be living in abject poverty and he has to search for a job on each day so as to feed himself and his two sisters.

12. We find fault with the officer of the respondentUniversity, who was cast with the duty of ensuring that the brother would make an application within the prescribed period.

13. In view of the above, this petition is partly allowed. The application dated 25/03/2015 filed by the petitioners, which is pending decision, shall be accepted by respondent Nos.2 & 3 and the name of petitioner No.1, who is about 25 years of age today, shall be enlisted in the list of eligible candidates for appointment on compassionate basis. The date of this judgment shall be the date with reference to which his name shall be entered in such list. It is informed that the age limit for such compassionate appointment is 40 years and, therefore, petitioner No.1 would be considered for compassionate appointment as per his seniority and availability of the post.

14. Rule is made partly absolute in the above terms.