Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 1491 (RAJ)

Union of India v. Chhagani Devi

2005-05-18

DINESH MAHESHWARI, RAJESH BALIA

body2005
Judgment Rajesh Balia, J.- Heard the learned Counsel for the parties. 2. This petition arises out of the order passed in Original Application No. 226/2003 on 9th July, 2004 by the Central Administrative Tribunal, Jaipur Bench, Jaipur. 3. Shri Moti Ram, who was employed with the petitioners, died in harness on 18.05.2000 leaving behind his widow, the applicant before the Tribunal, having six daughters and two sons. Soon thereafter, widow applied for giving appointment to her son on compassionate ground. At the time of making application all the children except the eldest daughter, who was about 20 years of age, were minor and unmarried. The family was receiving a family pension to the tune of Rs. 1600/-plus D.A. which at the time of filing of the application was 2400/-per month and had received terminal benefits to the tune of Rs. 2,55,383/-. 4. Realising that her son was minor, the widow made an application for herself seeking appointment on compassionate ground on account of her husband dying while in service on 10.07.2001. 5. By communication dated 10th March, 2003, the applicant was informed as under:- "The Board of Officers at CE (AF) Ahmedabad after taking into account each aspect referred to above has considered your case alongwith other candidates. However, due to more deserving cases and few vacancies available, your case was not recommended by the BOO for appointment on compassionate ground. In view of this, the competent authority is of the view that your case does not deserve employment assistance on compassionate grounds." 6. This led to filing of original application pointing out that extraneous criteria has been applied for eligibility in the selection proceedings which has resulted in appointment of a person far lower in merit. 7. In reply to the original application, the non applicants submitted details of consideration which has gone into determining the relative merit of the applicants which have been titled as factors to be taken into account while considering the relative merit for the post of Mazdoor quarter ending September, 2002. 8. That chart showed entirely different reason than what has been communicated to the applicant for not offering her appointment of compassionate ground. 8. That chart showed entirely different reason than what has been communicated to the applicant for not offering her appointment of compassionate ground. As a matter of fact, on the merit chart applicant secured the highest marks of 88 amongst candidates considered for appointment which was offered to one Mahendra Singh who had secured only 47 marks whose father died on 12.02.2002 and as many as cases of four persons who have more marks than the said Mahendra Singh were rejected on one ground or the other. .9. The ground disclosed in the case of non petitioner-applicant Smt. Chagnani was not that she was less meritorious as was communicated to her but the same was stated to be as under : ."Considered and rejected as one year from the date of death has already been completed before receipt of application from the individual will not be considered for subsequent posts." .10. The Tribunal found that the grounds communicated to the applicant are not supported by the respondents own considerations and in fact, the applicant had the highest merit on the criterion applied by the non applicants before it and the ground which was disclosed in the document referred to above was not tenable and was not supported by the Office Memorandum dated December 3, 1999 (Annex. A/4) relied on by the petitioners non applicants. On the aforesaid premise, the Tribunal allowed the application and directed the present petitioners to proceed with giving her appointment as Mazdoor as per her merit within the period of three months from the date of receipt of copy of the orders. .11. This has led to filing of this petition. 12. The learned Counsel for the petitioner has urged referring to Annex.A/4 that non applicant No.1 was not entitled to be offered appointment on compassionate ground because she has made application one year after the death of her husband and that is why the Board of Officers have rightly rejected the application of non applicant No.1. .13. The learned Counsel for non applicant No.1 has supported the order of the Tribunal for the reasons that weighed with the Tribunal. .14. We have considered the rival contentions and perused the material placed before us. 15. .13. The learned Counsel for non applicant No.1 has supported the order of the Tribunal for the reasons that weighed with the Tribunal. .14. We have considered the rival contentions and perused the material placed before us. 15. So far as the question that the applicant respondent No.1 was the most meritorious who could be offered appointment on compassionate ground and far ahead and needy than one to whom appointment has been offered is no more in dispute. 16. The only contention which therefore, survives is whether document Annex. A/4 does envisage any time limit within which application has to be made and the application made thereafter is not to be considered at all? 17. This contention is noticed to be rejected. Apparently, the petitioners have not got the application received after one year out of consideration and have not returned as not maintainable when received by them. In fact, entire gamut of assessing their comparative merit has been gone into and as many as four applications have been allowed. It appears only thereafter to find out some room for giving appointment to those four candidates, somehow the order on merit is sought to be avoided which is the prime consideration for giving appointment on compassionate ground and which is primarily depended on the financial consideration and the liabilities which the deceased has to discharge. The document relied on by the petitioners nowhere states that application has to be moved within one year of the death of the incumbent. 18. It would be profitable here to quote the document Annex. A/4: OM No. 14014/23/99-Estt (D) Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) New Delhi 110001, December 3, 1999 OFFICE MEMORANDUM Sub:_ Time limit for making compassionate appointment. The undersigned as directed to refer to the Department of Personnel and Training Office Memorandum No. 14014/6/94-Estt(d) dated October 9, 1998 on the above subject and to say that the question of prescribing of time limit for making appointment on compassionate grounds has received due consideration taking into account the ceiling of 5% of vacancies falling under direct recruitment quota in any Group C or D post prescribed in this regard in paragraph 7(b) ibid and the ruling of the Supreme Court that appointment on compassionate grounds can be made only if vacancies are available for the purpose (mentioned in Paragraph 17(d) ibid). Accordingly, it has been decided that the Committee prescribed in Paragraph 12 ibid for considering a request for appointment on compassionate grounds should take into account the position regarding validity of vacancy for such appointment and it should recommend appointment on compassionate grounds only in a really deserving case and only if vacancy meant for appointment on compassionate grounds will be available within a year, that too within the ceiling of 5% mentioned above. This would ensure grant of compassionate appointment within a year. In respect of other really deserving case the Committee should only recommend taking up the matter with other Ministries / Department/ Offices of the Government of India to consider those cases for appointment there as provided in Paragraph 7(f) ibid. 2. TheInstructions contained in the Office Memorandum dated October 9, 1998 stand modified to the extend mentioned above. 3. The above decision may be brought to the notice of all concerned for information, guidance and necessary action. Sd/- KK Jha Director (Establishment) 19. A bare perusal of the order shows that this is an attempt to create a procedure to be adopted, as far as possible, for the limited number of vacancies against which appointments can be offered on compassionate ground can be filled but it does not say that if while seeking compassionate appointment the applicant did not submit application within one year of the date of death, the case is not to be considered at all by the Board. It reads that it should recommend appointment on compassionate ground only in a really deserving case, it has repeated that in respect of other really deserving cases, the Committee shall only recommend taking up of the consultation with the Government to consider those cases for giving appointment. In fact, the Office Memorandum dated Dec., 3, 1990 is only an addendum to OM dated October 9, 1998 which laid down in detail the procedure for giving compassionate appointment in Group C or D posts. In fact, the Office Memorandum dated Dec., 3, 1990 is only an addendum to OM dated October 9, 1998 which laid down in detail the procedure for giving compassionate appointment in Group C or D posts. Amongst the eligibility criterion which has been stated in para 5 of the O.M. Dated 010.1998 reads that "family is indigent and needs immediate help for having disbursement" and "that the applicant for compassionate appointment should be eligible and suitable for posts in the respective departments under the provisions of the relevant Recruitment Rules." So far as widow is concerned special consideration has been envisaged that where widow has been appointed on compassionate ground to Group D posts, the educational qualification prescribed under the relevant rules should be relaxed. .20. The OM of 1998 not only envisages determination of number of vacancies that are to be filled on compassionate ground but also envisages that the employment under the scheme is not confined to the Ministry/Department in which the deceased Government servant was working. such an appointment can be given anywhere depending on suitable vacancy to be manned for the purpose of compassionate ground. About the time of making application and its consequence on consideration on compassionate ground, Clause 8 of OM of 1998 deserves consideration which reads as under:- .8. Belated requests for Compassionate Appointments .(a) Ministries/Departments can consider requests for compassionate appointment even where the death or retirement on medical grounds of a Government servant took place long back, say five years or so. While considering such belated requests it should, however, be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the Government servant in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. Therefore, examination of such cases would call for a great deal of circumspection. The decision to make appointment on compassionate ground in such cases may, therefore, be taken only at the level of the Secretary of the Department/Ministry concerned. Therefore, examination of such cases would call for a great deal of circumspection. The decision to make appointment on compassionate ground in such cases may, therefore, be taken only at the level of the Secretary of the Department/Ministry concerned. .(b) Whether a request for compassionate appointment is belated or not may be decided with reference to the date of death or retirement on medical ground of a Government servant and not the age of the applicant at the time of consideration. .21. The aforesaid directions should dispel any doubt about the per se rejection of application received after one year. In fact, the memorandum treats application made five years after the death as stale one, but still the same is not to be rejected outright on that basis alone but it only requires that the fact that the family has managed itself should normally be taken as adequate proof that family had some dependable means of subsistence, therefore, examination of such cases would call for a greater circumspection. In such cases, i.e., cases which are more than 5 years old, it states that decision should be taken only at the level of the Secretary of the Department or Ministry concerned. It further envisages, after picking up illustration of 5 years delay, that whether a request for compassionate appointment is delayed or not may be decided with reference to the date of death or .retirement on medical ground of a Government servant and not the age of the applicant at the time of consideration. Thus, it cannot be said that any such formula was laid through the OM that any application made after one year of death of incumbent shall be rejected on that ground alone. Whether in a given case, the application is belated one it requires greater scrutiny than what is ordinarily required in assessing the imminent need of employment, in a given case, depends on facts of each case. If it is found that the applicant is in need of urgent help and the application has been received quite late then the matter is left to be decided by the Secretary or the Ministry of the Department concerned but is not to be rejected on that ground only. 22. If it is found that the applicant is in need of urgent help and the application has been received quite late then the matter is left to be decided by the Secretary or the Ministry of the Department concerned but is not to be rejected on that ground only. 22. Moreover, Clause 7 to which reference has been made in OM of 1998 further postulates that if sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the Administrative Ministry/Department/ Office to take up the matter with other Ministries/Departments / Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list. Thus, policy needs all efforts to be made to offer such employment to dependent of deceased employee before saying no. 23. Therefore, from any angle, the decision of Board of Officers without considering the gravity of the requirement of applicants case for securing appointment on compassionate ground ignoring the factor of her merit on economical ground when she has been weighed most needy and to reject her claim outright with no chance of further consideration against future vacancies and putting her out, was wholly unwarranted and the Tribunal was justified in coming to the conclusion that she being the most meritorious, there being no specific rule for rejecting the application beyond one year of the death as non considerable, and looking the suitability of the candidate who was the most suitable candidate amongst candidates considered, she ought to have been given appointment. The marking procedure is like creating a merit list on the basis of variables which go into consideration before giving appointment to the one who gets the most marks. Once that merit list is prepared, the merit list cannot be ignored for the purpose of offering appointment on compassionate ground and to offer appointment to persons lower in order of merit. 4.24. In that view of the matter, there being no doubt about the eligibility of the applicant being highest in merit and the candidates considered for available vacancies being much lower than her and ground which was actually conveyed was non existent and the ground which weighed with the Board of Officers as per record, the direction issued by the Tribunal does not call for any interference. 25. 25. The petition, therefore, is dismissed with no orders as to costs. The direction of the Tribunal may now be complied with within two months, if not already complied with.