Dhirubhai Naranbhai Patel, J. - (1.) This Letters Patent Appeal has been preferred by the original petitioners against the judgment and order delivered by the learned Single Judge in W.P.(S) No. 4632 of 2013 dated 10th November, 2014 whereby, the petition preferred by these appellants was dismissed and the prayer for compassionate appointment was not allowed and hence, the original petitioners have preferred this Letters Patent Appeal. Counsel for the appellants submitted that Dinesh Kumar Mahto is son of the deceased employee viz. Madhusudan Mahto, who was declared medically unfit by the opinion of Medical Board in the year 2004. He was working as Electrician in Mahuda Coal Washery Plant. It is submitted by the counsel for the appellants that he is son of second wife of the deceased employee and therefore, he applied for compassionate appointment. His father was expired on 2nd September, 2010. It is submitted by the counsel for the appellants that Madhusudan Mahto was (sic - -had?) two wives viz. appellant No. 2 and appellant No. 3. Appellant No. 2 is first wife whereas, appellant No. 3 is second wife of the deceased Madhusudan Mahto and appellant No. 1 is son of late Madhusudan Mahto and appellant No. 3 and because of fact that his father was declared medically unfit in the year 2004 and later on expired in the year 2010, appellant No. 1 should have been appointed on compassionate appointment. These aspects of the matter have not been properly appreciated by the learned Single Judge and hence, the judgment and order passed by the learned Single Judge deserves to be quashed and set aside.
(2.) Counsel for the respondents submitted that as per National Coal Wage Agreement, the dependent of an employee viz. Husband/wife/unmarried daughter/son/legally adopted son can get the compassionate appointment. Moreover, this appellant No. 1 is not son of first wife, he is son of second wife and therefore, he is not covered by the National Coal Wage Agreement. It is further submitted by the counsel for the respondents that the father of this appellant No. 1 was declared medically unfit in the year 2004 whereas, the petition was preferred in the year 2013 i.e. after approximately 9 years. The very purpose of compassionate appointment has been frustrated by now. Similarly, after the death of the father of the appellant No. 1, which took place in the year 2010, this petition has been preferred after three years and this aspect of the matter has been properly appreciated by the learned Single Judge and hence, this Letters Patent Appeal may not be entertained by this Court.
(3.) Having heard counsels for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts and reasons: - - (i) Appellant No. 1 is seeking compassionate appointment because of the fact that his father was declared medically unfit in the year 2004, who was serving with the respondents, and who expired in the year 2010. (ii) It appears that appellant No. 1 is son of 2nd wife of the deceased employee, who married during the lifetime of his first wife. (iii) It further appears that as per the National Coal Wage Agreement the dependent under the scheme is husband/wife/unmarried daughter/son/legally adopted son. Appellant No. 1 (original petitioner) is not covered by any of the categories of the dependents. (iv) It further appears from the facts of the case that the father of appellant No. 1 was declared as medically unfit in the year 2004 and the writ petition was preferred in the year 2013 i.e. after lapse of 9 years. The death of the father of appellant No. 1 is taken place in the year 2010 and thereafter also much time has been lapsed. Thus, it appears that the very purpose of compassionate appointment has been frustrated by now. Compassionate appointment is not to be given to the dependents of the deceased employee or the employee (sic - -dependants?) of the medically unfit employee at any time. The purposes of the compassionate appointment is to give immediate support to the family of the deceased employee or to the family of medically declared unfit employee. Such type of appointments viz. compassionate appointment are exception to the general rule that there ought to be a public advertisement and public at large must be allowed to compete for the public post under Article 16 to the Constitution of India. Compassionate appointments are exception to Article 16 to the Constitution of India. When this appellant No. 1 could survive himself for 9 years after his father was declared medically unfit and also appellant No. 1 can survive for three years after the death of his father now he cannot be appointed on compassionate basis. In fact there is no legitimate right vested in the dependents to get themselves appointed on public post. (v) It has been held by Hon'ble Supreme Court in Umesh Kumar Nagpal vs. State of Haryana and Others, reported in : (1994) 4 SCC 138 : [1995 (1) PLJR (SC)102] in paragraphs 2 to 6, which read as under: - - "2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying -in -harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in -harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes -III and IV are the lowest posts in non -manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favorable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. 3. Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes -III and IV. That is legally impermissible.;