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2005 DIGILAW 248 (GAU)

Piklu Das v. Union of India

2005-03-21

BROJENDRA PRASAD KATAKEY

body2005
JUDGMENT B.P. Katakey, J. 1. The writ petitioner by the present writ petition has challenged the communication dated 12th February, 2002 issued by the Regional Director, National Savings, Assam Region, Government of India, Ministry of Finance rejecting the prayer for appointment on compassionate ground for the reason that in spite of repeated request and reminders issued by the authority he did not submit the requisite papers for appointment as Peon on compassionate ground and on the other hand insisted for appoint as Lower Division Clerk and also on the ground of subsequent abolition of all the vacant posts in Group 'C' and Group 'D' cadres in the National Savings Organisation as a measure of economy by the Government of India vide communication dated 11th June, 2001. The writ petitioner by the present writ petition has also prayed for directing the respondents to appoint him on compassionate ground. 2. I have heard Mr. A. K. Goswami, learned Senior Counsel for the petitioner assisted by Mr. M. K. Das and also Ms. N. D. Sarmah, learned Central Government Counsel. 3. The case of the writ petitioner in the writ petition is that his father Pabitra Chandra Das, who was working as Lower Division Clerk in the Office of the Deputy Regional Director, National Savings Organisation, Government of India died in harness on 17th January, 1998 and the petitioner being eligible for appointment as Lower Division Clerk filed an application on 11.2.1998 for appointment as such on compassionate ground, which was forwarded by the Deputy Regional Director, National Savings Organization to the Deputy National Savings Commissioner and as required by the authority he submitted all the requisite documents including his willingness to serve any where in India vide his communication dated 3.4.98. Thereafter the petitioner received a communication dated 11.6.98 from the authority directing to submit application in prescribed format alongwith affidavit of willingness to be appointed as Peon any where in India. The writ petitioner thereafter approached this court in Writ Petition (Civil) No. 2842 of 1999 which was disposed of on 31.7.2001 with a direction to the authorities to reconsider the application for appointment to the post of Lower Division Clerk on compassionate ground. The Regional Director thereafter issued the impugned communication dated 12th February, 2002 rejecting the prayer of the petitioner for appointment on compassionate ground for the reasons stated in the said communication. 4. Mr. The Regional Director thereafter issued the impugned communication dated 12th February, 2002 rejecting the prayer of the petitioner for appointment on compassionate ground for the reasons stated in the said communication. 4. Mr. Goswami, learned Senior Counsel for the petitioner submits that since the Government of India has a scheme for appointing the sons and daughters of government servant, who died in harness, on compassionate ground, the authority is bound to consider the case of the petitioner for appointment on compassionate ground in any posts commensurate to his qualification. According to the learned Senior Counsel though there is still requirement for his appointment, as the financial hardships still continues, for the death of sole bread earner of the family. Since the authority vide communication dated 23rd March, 1999 rejected the petitioner's claim for compassionate appointment as Lower Division Clerk, the petitioner approached this Court by way of W.P.C. No. 2842 of 1999 and in spite of direction issued by this court to the authority concerned to reconsider the matter, has not appointed the petitioner on compassionate ground and instead issued a communication dated 12th February, 2002 rejecting the claim of the petitioner for compassionate appointment on the ground that he did not submit the requisite papers for appointment as Peon in spite of repeated requests and reminders, for which he could not be appointed on compassionate ground and also by citing the reasons that the Government of India subsequently vide communication dated 11-6-2001 abolished all the vacant posts in Grade 'C" and 'D' cadres in the Organisation as a measure of economy. According to Mr. Goswami the object of making appointment on compassionate ground being to mitigate the hardship, due to the death of the bread earner in the family, such appointment is required to be provided immediately to redeem the family in distress. Mr. Goswami has submitted that the authority in not making appointment on compassionate ground, has violated its own scheme for such appointment and put the petitioner in grave hardship. Mr. Goswami in support of his contention has relied upon the decision of the Hon'ble Supreme Court in Smt. Sushma Gosain and Ors. v. Union of India and Ors. reported in (1990) ILLJ 169 SC. 5. Mr. Goswami in support of his contention has relied upon the decision of the Hon'ble Supreme Court in Smt. Sushma Gosain and Ors. v. Union of India and Ors. reported in (1990) ILLJ 169 SC. 5. Ms N. D. Sarmah, learned Central Government Counsel placing reliance on the affidavit-in-opposition filed on behalf of the respondents submits that though initially vide communication dated 4.3.1998 the petitioner was asked to submit the application and documents for consideration for appointment as Lower Division Clerk, on compassionate ground, which was issued inadvertently, the authority thereafter on 17.4.1998 asked the petitioner to submit his application in prescribed format for appointment as Peon on compassionate ground in any other Region in India as there was no vacancy available in Assam Region. As the petitioner did not submit any reply, another communication dated 11.6.1998 was issued by the acting Regional Director to Smti. Jhama Das mother of the petitioner requesting her again to send the papers duly executed by her son (writ petitioner) for appointment on compassionate ground as Peon. The writ petitioner without submitting the application as required by the said communication approached this court by way of Civil Rule No. 4377 of 1998 which was dismissed as premature with the observation that since the matter for appointment on compassionate ground was under consideration the writ petitioner may submit the reply to the said communication dated 11.6.1998 and in case of submission of such communication the authority will consider the case for appointment on compassionate ground according to law. According, to the learned Central Government counsel the writ petitioner in spite of the aforesaid communication as well as the direction issued by this court, did not submit the requisite applications and information as requested by the aforesaid letters including letter dated 11.6.1998 and, therefore, the authority upon consideration of the matter vide communication dated 23.3.1999 rejected the writ petitioner's claim for compassionate appointment. The said communication was challenged by the writ petitioner before this court in W.P.C No. 2842 of 1999 and this court vide order dated 31.7.2001 has directed the authority to reconsider the matter, as the communication dated 23.3.1999 does not show any reason as to why the writ petitioner's claim was rejected. Ms. The said communication was challenged by the writ petitioner before this court in W.P.C No. 2842 of 1999 and this court vide order dated 31.7.2001 has directed the authority to reconsider the matter, as the communication dated 23.3.1999 does not show any reason as to why the writ petitioner's claim was rejected. Ms. Sarmah, learned government counsel has further submitted that in spite of repeated request and reminders issued by the authority and also the observations made by this court in order dated 7.9.1998 passed in Civil Rule No. 4377 of 1998, the petitioner did not submit any application for appointment on compassionate ground as Peon and also the willingness to serve any where in India as there was no vacancy in Assam Region. The authority, therefore, has to issue the communication dated 12.2.2002 rejecting the prayer of the petitioner for appointment on compassionate ground as LDC. It has further been submitted by the learned Central Government Counsel that in the matter of compassionate appointment there cannot be insistence for a particular post and in the present case the writ petitioner has insisted for appointment as LDC and in spite of repeated requests and reminders no application has been submitted for appointment as Peon. The Government of India also in the meantime vide communication dated 11.6.2001 abolished all the vacant posts in Group 'C' and Group 'D' cadre in the National Savings Organisation as a measure of economy. By taking into account the totality of the facts, the learned counsel submits that, the authority could not appoint the petitioner on compassionate ground. 6. I have considered rival submissions put forward by the learned counsel for the parties and also perused the statements made in the writ petition and the affidavit-in-opposition as well as the documents appended thereto as annexures. It is evident from the statements made in the writ petition that the petitioner's father Pabitra Chandra Das, who was working as Lower Division Clerk in the Office of the Deputy Regional Director, Regional Savings Organisation, Government of India, died in harness on 17.1.1998 aid the petitioner being the son and there being a scheme for appointment on compassionate ground, an application dated 11.2.1998 was submitted for his appointment as Lower Division Clerk. Though the authority initially vide communication dated 4.3.1998 informed the applicant to submit the necessary document for appointment as LDC, the same was subsequently modified vide communication dated 17.4.1998 whereby the applicant was informed that the earlier letter dated 4.3.1998 was in advertently issued and it was directed that the application in prescribed format for appointment as Peon be submitted and also a written undertaking from the writ petitioner that he is willing to serve any where in India wherever the vacancy is available, since there is no vacancy in Assam Region. As no reply was submitted, another communication dated 11.6.1998 was issued requesting mother of the writ petitioner to take necessary steps for filing of the said application by her son for appointment on compassionate ground alognwith a written undertaking, as initial application was filed by the mother for appointment of her son (writ petitioner) on compassionate ground. Another communication dated 14.9.1998 was also issued to that effect to the mother of the petitioner reminding her to submit the requisite application pursuant to the earlier communication including communication dated 11.6.98. But in spite of such request and reminders no application has been filed by the writ petitioner for appointment as Peon on compassionate ground. It is also evident that in spite of order passed by this court on 7.9.1998 in Civil Rule No. 4377 of 1998 the writ petitioner did not avail this opportunity of replying to the communication dated 11.6.1998 whereby he was asked to submit an application for the post of Peon. Instead the writ petitioner insisted for appointment as Lower Division Clerk, which post was held by his father. The authority, therefore, having considered the prayer issued a communication dated 23.3.1999 rejecting the claim of the petitioner for appointment as LDC on compassionate ground which was challenged before this court by the petitioner by way of W.P.C No. 2842 of 1999 and this court vide order dated 31.7.2001 disposed of the writ petition with a direction to the authority concerned to reconsider the matter, as no reason has been cited by the authority as to why the petitioner's case was rejected. It is also evident from Annexure-20 to the affidavit in opposition that the writ petitioner submitted another application dated 10.9.2001 addressed to the respondents claiming appointment in the post of LDC on compassionate ground. It is also evident from Annexure-20 to the affidavit in opposition that the writ petitioner submitted another application dated 10.9.2001 addressed to the respondents claiming appointment in the post of LDC on compassionate ground. Moreover, the writ petitioner though in paragraph 6 of the writ petition has stated that the authority directed him to submit the application in prescribed format for appointment as Peon and his willingness to serve any where in India enclosing therewith attested copies of his testimonials, the writ petitioner is silent as to whether such application was submitted by him for appointment as Peon. On the other hand, as stated above, it is evident from Annexure-20 of the affidavit in opposition that the writ petitioner insisted for appointment as LDC only. The authority thereafter upon consideration of such application rejected the prayer of the writ petitioner for appointment on compassionate ground vide communication dated 12th February, 2002 on the ground that the petitioner has failed to submit any application for appointment as Peon and insisted for appointment as LDC in the posts by his father and also on the ground that meanwhile the Government of India vide communications dated 11.6.2001 has abolished all the vacant posts in Group 'C" and Group 'D' as a measure of economy. 7. This court with a view to consider as to whether there is any existing vacancy in Group 'D' posts, due to retirement of any staff, directed the learned Central Government counsel vide order dated 1.2.2005 to apprise this court about such vacancy position any where in India. Learned Counsel pursuant to the said order passed by this court placed a communication dated 9.2.2005 on record issued from the office of the Director, National Savings Organisation to the Regional Director intimating that the future vacancy in Group 'D' cadre will accrue only in the year 2010. 8. In Smt. Sushma Gosai and Ors. (supra) the Hon'ble Supreme Court has observed that in all claims of appointment on compassionate ground there should not be any delay in appointment as the purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family and therefore the appointment should be provided immediately to redeem the family in distress. The Apex Court in a recent judgment in National Hydro Electric Power Corporation and Anr. v. Nanak Chand and Anr. The Apex Court in a recent judgment in National Hydro Electric Power Corporation and Anr. v. Nanak Chand and Anr. reported in AIR 2004 SCW 6339, by taking into consideration of earlier decisions, has held that the very purpose of appointment on compassionate ground is to mitigate the hardship caused due to death of bread earner in the family and no one can insist for appointment to a particular post. If there is any undue delay in making the application, the same do not deserve consideration by the authority. The Apex Court has further held that as a rule, in public service, appointment should be made strictly on the basis of the open invitation of application and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the open recruitment taking into account the fact of the death of the employee while in service leaving his family without any means of livelihood. 9. The object of appointment on compassionate ground is to mitigate the hardship due to the death of the bread earner in the family. In the matter of compassionate appointment, there cannot be insistence of a particular posts. The scheme for appointment on compassionate ground is formulated out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet. The scheme is formulated to make provision for giving appointment to the dependents of a deceased employee subject to the eligibility. In making appointment on compassionate ground the authority is also required to see whether such appointment is really necessary. 10. In the instant case there is no dispute about the existence of a scheme for appointment on compassionate ground. As discussed above, it is evident that the writ petitioner insisted for appointment as LDC only and in spite of the repeated requests and reminders no application has been filed in prescribed format for appointment as Peon, i.e., in Group 'D' posts and also did not supply testimonials. The writ petition is silent as to whether the family of the deceased employee is still in distress and there is still no earning member of the family of Pabitra Chandra Das who expired way back on 17.1.1998. The writ petition is silent as to whether the family of the deceased employee is still in distress and there is still no earning member of the family of Pabitra Chandra Das who expired way back on 17.1.1998. The authority has also in the meantime, decided to abolish all the vacant posts in Group 'C' and T)' cadre as a economic measure, which is reflected in the Govt. of India's letter dated 11.6.2001. It is thus evident that the petitioner could not be appointed as Peon on compassionate ground for his inaction only and before the vacant posts in Group 'C' and 'D' were abolished. That being the position no illegality has been caused by the respondents in issuing the communication dated 12th February, 2002 rejecting the claim of the petitioner for appointment on compassionate ground as Lower Division Clerk. 11. In view of above, I do not find any merit in the writ petition and hence the same is dismissed. No costs. Petition dismissed.