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2001 DIGILAW 292 (JK)

Union Of India v. Aseem Sharma

2001-11-23

H.K.SEMA, S.K.GUPTA

body2001
PER H.K. SEMA, CHIEF JUSTICE: 1. We have heard Mrs. Neeru Goswami, Additional Central Government Standing Counsel for appellants as well as Mr. J.S. Kotwal, Advocate for respondent. 2. The controversy involved in this appeal centered around the question of appointment on compassionate ground of respondent-1. Respondent™s father was working as Office Superintendent Grade-I under the appellant. He died on 12-03-1992 in harness. Thereafter, the mother of respondent-1 stated to have been applied for making suitable appointment on compassionate ground within time. This statement has been however, controverted by Mrs. Neeru Goswami, learned counsel for appellants that no such application has been filed. Be that as it may, another application dated: 20-05-1995 has been preferred by the present respondent and it was processed at various level. As the appointment on compassionate ground did not materialise, it appears that the respondent has also issued a legal notice under section 80 CPC. The said legal notice has been answered by letter dated: 26-11-1999, the operative portion of which, is extracted below:- .... At present appointment cannot be offered to Shri Aseem Sharma S/o Late Sh. RP Sharma against deceased quota due to non-availability of vacancy. His case will be considered on merit on his own turn as and when vacancy occurs.� Being aggrieved, the respondent preferred Service Writ Petition No. 566/2000, which has been disposed of by the Learned Single Judge, after hearing the counsel of both sides. The relevant portion of which, reads as under:- As a result of aforesaid discussion, this Writ Petition deserves to be allowed and as a consequence of it communication Annexure-D dated: 26-11-1999 issued by Adm. Offr., for Chief Engineer, Udhampur Zone, PO: Garhi, Udhampur-182121 denying the claim of the petitioner is hereby quashed and set aside. It is further directed that he shall be offered employment on compassionate ground, subject of course fulfillment of other requirements under law. This exercise shall be completed by respondent on or before 31 -03-2001. Registry is directed to supply Dasti copy of this order on payment of usual charge to the learned counsel for the parties.� 3. By the aforesaid order, the Learned Single Judge has directed the respondent™s appointment on compassionate ground and further directed that the same exercise shall be completed by the respondents in the writ petition on or before 31-03-2001. Registry is directed to supply Dasti copy of this order on payment of usual charge to the learned counsel for the parties.� 3. By the aforesaid order, the Learned Single Judge has directed the respondent™s appointment on compassionate ground and further directed that the same exercise shall be completed by the respondents in the writ petition on or before 31-03-2001. It would thus appear that positive direction has been issued in the form of writ of mandamus directing the respondents to appoint the petitioner/respondent on compassionate ground. 4. Many points have been urged before us by counsel of both sides. The fact remains that the father of the petitioner-respondent herein died in harness. Normally, such family would be entitled for consideration for appointment on compassionate ground, if the family as left in penury due to demise of the bread winner of the family. It is also noticed from operative portion of order dated: 26-11-1999 as quoted above that the respondent-authority was intact considering the case of the petitioner for appointment on compassionate ground. The only factor, which has prevented the appellant-authority not to appoint the petitioner in time, was for want of existence of vacancy for appointment. This would go to show that infact the appellant-authority was pursuing consideration of the appellant-authority, subject to his possessing requisite qualification and subject to the availability of the vacancy. 5. It is debated at the bar that in the facts and circumstances aforesaid, the learned Single Judge was incompetent to issue a positive direction in the form of writ of mandamus commanding the appellant-authority to appoint the petitioner on compassionate ground. This point has been considered by the Supreme Court in a catena of cases and the Supreme Court has deprecated the issuance of writ of mandamus by the High Court for a positive direction to appoint on compassionate ground. To avoid multiplicity, we may refer to few directions of the Supreme Court. In State of Haryana, Appellant Vs. Naresh Kumar Bali, Respondent. (1994) 4 Supreme Court Cases 448, it was pointed out by the Supreme Court that High Court can only direct consideration of writ petitioners claim to compassionate appointment in accordance with rules. It cannot itself direct appointment. In Managing Director, MMTC. New Delhi and another, appellants Vs. In State of Haryana, Appellant Vs. Naresh Kumar Bali, Respondent. (1994) 4 Supreme Court Cases 448, it was pointed out by the Supreme Court that High Court can only direct consideration of writ petitioners claim to compassionate appointment in accordance with rules. It cannot itself direct appointment. In Managing Director, MMTC. New Delhi and another, appellants Vs. Pramoda Dei Alias Nayak, respondent (1997) 11 SC 390, it was pointed out by the apex court that the High Court in exercise of power under Article 226 of the Constitution, should have directed the competent authority to consider the case of the candidate and should not have issued direction for giving compassionate appointment to him. Yet in another case titled State of Rajasthan, appellant Vs. Chandra Narain Verma, respondent (1994) 2 Supreme Court Cases 752, it was pointed out by the apex court that High Court while issuing direction under Article 226 of the Constitution to appoint the respondent as Sub-Inspector, was erroneous. 6. Keeping in view the aforesaid decisions of the apex court, the law is now well settled that when a complaint is brought before the court for non-appointment on compassionate ground, the court can only direct the respondent for consideration of appointment in accordance with rules and regulations, if any, and subject to the claimants possessing of requisite qualification and the availability of post. 7. As noticed above, in the instant case, the Learned Single Judge has issued writ of mandamus giving positive direction to the appellant-authority to appoint the petitioner/respondent on compassionate ground, which in our view, was not in consonance with the law laid down by the Supreme Court, as referred to above. The direction of the Learned Single Judge is accordingly, set aside. We, however, reiterate that the appellant-authority shall continue to pursue the process of considering the appointment of respondent in accordance with rules and regulations. This has been clearly indicated in communication dated: 26-11-1999, which has been set aside by the Learned Single Judge. We also make it clear that the delay will not come in the way of respondent to have considered his case in accordance with rules and regulations, if any. This we say because we are of the view that application has been filed within time. If that is so, delay on processing the application, should not come in the way of the petitioner for consideration of his case. This we say because we are of the view that application has been filed within time. If that is so, delay on processing the application, should not come in the way of the petitioner for consideration of his case. Needless to say that case of the petitioner shall be considered alongwith other eligible candidates falling within the same category. With the aforesaid direction, this appeal is disposed of.