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2001 DIGILAW 537 (JHR)

Manish Kumar v. Union Of India

2001-08-06

M.Y.EQBAL

body2001
ORDER M.Y. Eqbal, J. 1. Heard the counsel for the parties. 2. The grievance of the petitioner is that although the respondents have taken a decision to appoint him on compassionate ground but they are not giving him employment. 3. The petitioner earlier moved this Court by filing a writ application being CWJC No. 1538/2000-R The said writ application was disposed of on 26.6.2000 directing the respondents to consider the application filed by the petitioner for compassionate appointment and take a decision in accordance with law within a period of two months. When the said direction was not complied with, the petitioner filed a contempt petition being MJC No. 645/2000-R. In that contempt petition a show cause was filed by the respondents stating that the case of the petitioner for appointment in Group C post has been forwarded for necessary action. This Court again gave one indulgence to the respondents and disposed of the contempt petition directing the respondents to take decision within 30 days from the date of receipt of a copy of the said order. However, when the contempt petition itself was pending, a decision was taken by the respondents on 19.2.2001 whereby the Chief Engineer approved the appointment of the petitioner on compassionate ground in Group D post subject to the condition that the Superintending Engineer, Co-ordination Circle (ER) shall issue a formal letter of appointment only against the available vacancy in the prescribed quota for compassionate appointment. The Chief Engineer, in the said decision, also accorded relaxation to the upper age limit in the case of the petitioner. 4. A counter-affidavit has been filed by the respondents stating, inter alia, that the approval of the Chief Engineer (E)-II CPWD for appointment of the petitioner in Grade D post has been received and the name of the petitioner at present stands at Serial No. 9 in the waiting list prepared as per date of death of the Government employee and as per the rule only 5% of the existing vacancy are filled up on the ground of compassionate appointment. 5. 5. The contention of the learned counsel appearing on behalf of the petitioner, on the one hand, is that the petitioners father died in 1998 and only in 2000 i.e. after three years the respondents have taken a decision to appoint the petitioner on compassionate ground but a condition was imposed that such appointment shall be on the availability of the vacancy and according to seniority of persons who are entitled to get appointment on compassionate ground. According to the learned counsel, if vacancy does not arise, then how long the petitioners appointment on compassionate ground shall be kept in abeyance. 6. The contention of the learned counsel for the respondents, on the other hand, is that a seniority list of the respective candidates for appointment on compassionate ground has been prepared on the basis of the date of death of the Government employee, and therefore, question of discrimination does not arise. Learned counsel further submitted that under the scheme only 5% of the total vacancy accruing every year has been kept for giving appointment on compassionate ground. 7. Annexure-2 to the writ application is an office memo which lays down the scheme/rule for giving appointment on compassionate ground. Clause (a) of the said circular provides that all cases of compassionate appointments need to be dealt with on top priority basis. A final decision on the application should invariably to be taken within 60 days of the receipt of the application duly completed. Clause (d) of the said circular provides for compassionate appointment laying down that such appointment can be made only upto 5-1/2% of the vacancy to be filled up by direct recruitment in a recruitment year. In case the number of eligible and approved applicants exceeds the prescribed limits, a waiting, list of such cases shall be maintained by the concerned department/officers of the Ministry and compassionate appointment shall be made as per the position of the applicants in that list. 8. Annexure-A to the counter-affidavit is a letter dated 22.5.2001 issued by the Superintending Engineer (Co-ordination Circle) (ER) CPWD Calcutta. It says that the appointment of the petitioner on compassionate ground has been approved and a formal offer of appointment shall be issued on the basis of seniority. It also says that as per rule only 5% of the existing vacancy are filled up by compassionate appointment. It says that the appointment of the petitioner on compassionate ground has been approved and a formal offer of appointment shall be issued on the basis of seniority. It also says that as per rule only 5% of the existing vacancy are filled up by compassionate appointment. It further says there is no vacancy at present against this quota. 9. The first question falls for consideration is whether compassionate appointment will wait the availability of the vacancy? Earlier view was that the appointment on compassionate ground will not be deferred on the ground of non- availability or for want of existing vacancy. But, now the law is well-settled that compassionate appointment will be given subject to availability of the vacancy. In this connection reference may be made to two decisions of the Apex Court reported in 1996 (6) SCC 394 and AIR 1997 SC 123 . 10. The respondents in their counter-affidavit as also in the documents annexed therewith have very categorically stated that the seniority of the candidates in whose favour letter of appointment will be issued, shall be maintained strictly as per the date of death of their respective Government employees. Petitioners position in the panel is at Serial No. 9. 11. Mr. P.K. Prasad, learned counsel appearing for the respondents has stated that the candidates at Serial Nos. 1 to 8 place above the petitioner are the dependants of the Government employees who died prior to the death of the petitioners father. If that is so then there is no difficulty. But if it is otherwise, the respondents shall see that while issuing appointment letters the seniority according to the date of death of the respective Government employees, is strictly maintained. Mr. Prasad further submitted that for the present there is no vacancy but in coming future there shall be vacancy against which the petitioner and other claimants shall be taken into employment and necessary offer of appoint shall be issued to them. This Court hope and trust that the respondents shall issue letter of appointment by strictly main- taining the seniority according to date of death of their respective Government employees. 12. With the aforesaid observation and direction, this writ application is disposed of. 13. Writ application disposed of.