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Rajasthan High Court · body

2007 DIGILAW 2044 (RAJ)

Manju Nigam v. Union of India

2007-10-24

R.M.LODHA, R.S.CHAUHAN

body2007
JUDGMENT 1. - R.K. Nigam- the husband of the present appellant was substantively employed on the post of HSG-II in the Postal Department. He died unfortunately on 4th December, 1999 leaving behind his widow (the present appellant) and two young daughters. As per the policy of the Department of Post for appointment under relaxation of Recruitment Rules on compassionate ground, the appellant applied vide her application dated 13.12.1999/4.1.2000 for appointment in the Postal Assistant Cadre. He: application was rejected on 5th February, 2001 inter-alia on the grounds : (i) that she has been getting family pension amounting to Rs. 2,800/- per month; (ii) that the terminal benefits to the tune of Rs. 4,30,957/- has been paid to her, and (iii) that she was in possession of the residential house and KVP of Rs. 2,50,000/-. She was, thus, informed that her financial condition did not appear to be indigent requiring immediate relief. 2. The petitioner challenged the order dated 5th February, 2001 by filing Original Application No. 182/2001 before the Central Administrative Tribunal. 3. The Tribunal observed that the provisions of the scheme for compassionate appointment were liberal and that she was entitled to be considered for appointment on compassionate ground on a suitable post and she cannot be denied the appointment on compassionate ground because she received terminal benefits. The Tribunal, thus, by its order dated 20th November, 2001 directed the respondents to reconsider the case of the petitioner for appointment on compassionate ground on a suitable post within a period of two months from the date of the order. 4. Pursuant to the order passed by the Tribunal on 20th November, 2001, the case of the appellant for appointment on compassionate ground was reconsidered and rejected by the Circle Relaxation Committee and the petitioner was communicated vide letter dated 1st January, 2002. The grounds for rejection of the petitioner's claim for appointment on compassionate ground as set out in the communication dated 1st January, 2002 read thus : "In compliance to the directions of the Hon'ble Tribunal issued on 8.12.2000 while deciding OA No. 567/2000 filed by Smt. Manju Nigam (the applicant), the case had been considered on 7.2.2001 but was rejected on its merits. The Circle Selection Committee met on 31.12.2001 again carried out an objective assessment of the financial condition of the family thoroughly taking into account the position regarding availability of vacancy for such appointment. The Circle Selection Committee met on 31.12.2001 again carried out an objective assessment of the financial condition of the family thoroughly taking into account the position regarding availability of vacancy for such appointment. As per instructions on compassionate grounds contained in DOP & T OM No. 14014/6/94-Estt. (D) dated 9.10.98 read with O.M. No. 14014/23/99-Estt. (D) dated 3.12.999 the appointment on compassionate grounds is intended to render immediate assistance to the family of Govt. servant who dies in harness leaving his family in financial crisis and such appointment can be proved only to fill upto 5% of vacancies that arise for direct recruitment within a year. Consequently, it becomes essential to ensure that only more deserving cases are approved as per the purpose stipulated in the scheme. Further, there is no provision for approving cases in the absence of vacancies for compassionate appointment and keeping them on waiting list and maintaining of waiting list has been discontinued by DOP vide letter No. 24-1/99-SPB.1 dated 8.2.2001 in pursuance of DOP & T O.M. No. 42012/4/2000-Estt. (D) dated 24.11.2000. As observed by the Hon'ble Supreme Court in U.K. Nagpal's case, the only ground which can justify compassionate appointment is the penurious condition of the family and it should be offered as relief against the destitution. In addition objective of the scheme is to have the family to get out of emergency which is indigent and deserve immediate assistance for relief from financial destitution. The DOP & T vide its OM No. 14014/18/2000-Estt. (D) dated 22.6.2001 has stipulated that the committee should take into account the position regarding availability of vacancy for such appointment and it should limit its recommendations to appointment on compassionate grounds only in a really deserving cases and only if vacancy meant for the appointment on compassionate grounds will be available within a year in the concerned department that too within the ceiling of 5% of vacancies falling under direct recruitment quota. In view of above, the application for compassionate appointment of the applicant has been examined thoroughly be the CSC taking into account the financial condition as well as availability of vacancy for the purpose. The committee feels that the basic purpose of providing immediate financial assistance is not relevant if the applicant is not accommodated within a year and there is no chance to accommodate the applicant within a year. The committee feels that the basic purpose of providing immediate financial assistance is not relevant if the applicant is not accommodated within a year and there is no chance to accommodate the applicant within a year. The case was rejected by CSC on 17.1.2001. In view of thd' position explained above the case was reconsidered and has been rejected." 5. It is pertinent to notice that the present respondents also challenged the order of the Tribunal dated 20th November, 2001 before this Court in DB Civil Writ Petition No. 181212002. The said writ petition was dismissed by the Division Bench on 23rd September, 2002 holding thus : "In these circumstances, if the Central Administrative Tribunal gave a direction to the respondents to reconsider the case of the Smt. Manju Nigam for appointment on compassionate grounds on a suitable post, in our opinion same does not warrant any interference in exercise of our writ jurisdiction under Article 226 which is an equitable jurisdiction; and we also find that direction as has been given by Central Administrative Tribunal seeks to render substantial justice in the facts of this case. Once the scheme of compassionate appointment had been evolved out and it had been found that the respondent had a case for appointment on compassionate ground, she could not be denied this appointment on compassionate ground merely because the retiral benefits have been received by her in lieu of the service rendered by her husband till the date of his death while being in service. We do not find any force in position and the same is hereby dismissed." 6. The petitioner felt that the communication dated 1st January, 2002 intimating her that on reconsideration her claim for appointment on compassionate ground has been rejected was in disregard of the order of the Tribunal passed on 20th November, 2001 and, consequently, she filed contempt petition (62/2002) before the Central Administrative Tribunal. The Tribunal took cognizance of the contempt vide its order dated 26th November, 2002. The present respondents filed their response. Ultimately by its order dated 5th May, 2003, the Tribunal dismissed the contempt petition. This is what the Tribunal observed in its order dated 5th May, 2003. "7. We have given the matter our thoughtful consideration. It has to be accepted that the Tribunal had not given positive direction to the respondents to give employment to the applicant. Ultimately by its order dated 5th May, 2003, the Tribunal dismissed the contempt petition. This is what the Tribunal observed in its order dated 5th May, 2003. "7. We have given the matter our thoughtful consideration. It has to be accepted that the Tribunal had not given positive direction to the respondents to give employment to the applicant. What was stated in the order dated 20.11.2001 was that the respondents would reconsider the case of the applicant for appointment on compassionate ground on suitable post. It is true that in the order it was observed that the applicant could not be denied employment on the ground that she had received terminal benefits on the death of her husband, but it is seen that in the order (Annexure CP-2) it was not stated that the applicant was not entitled to employment on compassionate ground because she had received retiral benefits. What is stated in the communication is that in view of the Supreme Court judgment in U.K. Nagpal's case the only ground which can justify compassionate appointment is the penurious condition of the family and it should be offered as relief destitution. In the order there is a reference of the DOP & T O.M. dated 22.6.2001 which stipulates that committee should take into consideration if vacancy for such appointment is available and it should limit its recommendations to appointment on compassionate grounds only a really deserving case and only if vacancy meant for appointment on compassionate grounds is available within a year. It was stated in the letter that the committee after taking into account the financial conditions, as well as, the availability of vacancy held that the applicant could not be given appointment. 8. It is manifest that the Circle Selection Committee had not rejected the claim of the applicant on the ground that she had received terminal benefits. The grounds taken by the Circle Selection Committee are the observations of the Judgment of the Supreme Court as also the stipulation made in the DOP & T letter dated 22.6.2001. 9. Since the Tribunal had not given a positive direction of giving appointment to the applicant it cannot be said that the respondents in the OA, much less, the respondent in the C.P. has wilfully avoided the implementation of the order of the Tribunal. 10. 9. Since the Tribunal had not given a positive direction of giving appointment to the applicant it cannot be said that the respondents in the OA, much less, the respondent in the C.P. has wilfully avoided the implementation of the order of the Tribunal. 10. This fact also cannot be lost sight of that the respondents had joined as Principal Chief PMG on 26.4.2002 and had left the office on 16.10.2002. The Circle Selection Committee had already considered the case of the applicant in the meeting dated 31.12.2001. Since there was no positive direction of the Court to give employment to the applicant vide order dated 20.2.2001, it cannot be said that the respondent has committed contempt, when he issued communication dated 1.11.2002 on the basis of the Minutes of the meeting of the Circle Selection Committee dated 31.12.2001. 11. In our considered opinion, no case of contempt is made out and the petition is liable to be dismissed. 12. Consequently, the petition is dismissed. Notice issued vide order dated 26.11.2002 stand discharged." 7. The present petitioner challenged the order of the Tribunal dated 5th May, 2003 by filing writ petition (6537/2003) before this Court. The Division Bench disposed of that writ petition by the following order : "The admitted facts are that Smt. Manju Nigam applied for appointment on compassionate ground as her husband expired on 4.12.1999. A petition was filed before the Central Administrative Tribunal and the Central Administrative Tribunal has directed to reconsider the case of the petitioner Smt. Manju Nigam ignoring the peculiar benefits she received on the death of her husband. In pursuance of the direction the matter has been reconsidered and on reconsidering the matter, the Assistant Director has referred the decision of Supreme Court in U.K. Nagpal's case and also stated in the order that the appointment can be given if the vacancy meant for appointment on the compassionate ground is available within one year. Once the direction was given by the Tribunal and that has been upheld by this Court, normally application should not be rejected. It is true that though the application of the petitioner for appointment on compassionate ground was rejected on the ground of peculiar benefits given to the widow of the deceased employee, but the additional ground has been given of rejecting the application that the vacancy meant for appointment off} the compassionate ground is not available. It is true that though the application of the petitioner for appointment on compassionate ground was rejected on the ground of peculiar benefits given to the widow of the deceased employee, but the additional ground has been given of rejecting the application that the vacancy meant for appointment off} the compassionate ground is not available. The reference of this ground has been made in the order, rejecting the application dated 1.1.2002, but detail facts are not given as how vacancy is not available in that year and how that has to be calculated? The respondent is directed to reconsider the application for appointment on compassionate ground and give detail reason considering the relevant rule how the vacancy on compassionate ground is to be ascertained. With these directions, we dispose of this writ petition. If the vacancy is available for appointment on the compassionate ground, she shouldI be appointed within three months from today." 8. The Circle Relaxation Committee in the light of the order passed by this Court on 31st October, 2003 reexamined the matter and again rejected the petitioner's case for appointment on compassionate ground on 3rd February, 2004 and the petitioner was communicated accordingly. The Circle Relaxation Committee considered the matter of the petitioner as follows: The brief facts of the case are that Shri R.K. Nigam, P.A. Circle Office, Jaipur expired on 4.12.99 Smt. Manju Nigam, widow of the deceased applied for appointment on compassionate ground under relaxation of recruitment rules through SSPOs Jaipur City Jaipur which was received in the Circle Office on 21.6.2000. The Circle Relaxation Committee considered the case in the meeting held on 17.1.2001 and rejected. The applicant titled OA No. 567/2000 against the rejection of her case before the Hon'ble CAT Jaipur Bench which was disposed of on 8.12.2000 with the direction that respondent No.2 i.e. Chief Postmaster General should decide the representation of the applicant within two months by a reasoned and speaking order, if the applicant files the same within one months from the date of passing of this order. The representation of the applicant was considered and rejected by this order. The representation of the applicant was considered and rejected by the Chief Postmaster General Rajasthan Circle, Jaipur by a speaking order issued vide memo No. Rectt./4-42/99 dated 7.2.2001. The representation of the applicant was considered and rejected by this order. The representation of the applicant was considered and rejected by the Chief Postmaster General Rajasthan Circle, Jaipur by a speaking order issued vide memo No. Rectt./4-42/99 dated 7.2.2001. 3.i. Aggrieved by the decision of the Circle Relaxation Committee dated 17.1.2001 and decision of Chief Postmaster General, Rajasthan Circle dated 7.2.2001, the applicant again filed OA No. 180/2001 in Hon'ble CAT Jaipur Bench which was decided on 21.11.2001 with the direction that the respondent should reconsider the case of the applicant for appointment on compassionate grounds on a suitable post within a period of two months from the date of receipt of the order. 3.ii In compliance to the directions of the Hon'ble Tribunal the Circle Relaxation Committee reconsidered the case in its meeting held on 31.12.2001 and after an objective assessment of the financial condition liabilities the family of the deceased and availability of a vacancy for compassionate appointment. The Committee did not find the case indigent and rejected. The decision of the CRC was communicated to the applicant. The applicant also filed contempt petition in the Hon'ble Tribunal Jaipur Bench which was dismissed vide its order dated 5.5.03. 4. As per the instructions on compassionate grounds appointments contained in Department of Personnel and Training OM No. 14014/6/94-Estt (D) dated 3.12.99 the appointment on compassionate grounds are intended to render immediate assistance to the family of Govt. servant who dies in harness leaving his family in financial crisis and such appointment can be provided only to fill up 5% of vacancies that arise for direct recruitment within a year. Consequently it becomes essential to ensure that only more deserving cases are to be approved as per the purpose stipulated in the scheme. Further there is no provision for approving the cases in the absence of vacancies for compassionate appointment and keeping them on waiting list since maintaining of waiting list has been discontinued by the Department of Posts vide letter No. 2-1/99-SPB dated 8.2.2001 in pursuance of Department of Personnel and Training OM No. 42012/4/2000 Estt. (D) dated 24.11.2000. Further there is no provision for approving the cases in the absence of vacancies for compassionate appointment and keeping them on waiting list since maintaining of waiting list has been discontinued by the Department of Posts vide letter No. 2-1/99-SPB dated 8.2.2001 in pursuance of Department of Personnel and Training OM No. 42012/4/2000 Estt. (D) dated 24.11.2000. The Department of Personnel and Training has further stipulated in its OM No. 14014/18/2000-Estt (D) dated 22.6.2001 that the cases will not be referred to other ministries/departments as there are no spare vacancies left to accommodate requests from other Ministry/Department in view of ceiling of 5% and have advised that their earlier instructions on this issued vide para (F) of its OM dated 9.10.98 may be deemed as amended to that extent. The Department of Personnel & Training vide its OM dated 16.5.01 has intimated that direct recruitment would be limited to ⅓ of the vacancies of direct recruitment quota arising in the year that too cleared by the Screening Committee of the Govt. subject to the condition that the total vacancies proposed for filling up should be within 1% of the cadre strength. The remaining vacancies meant for direct recruitment which are not cleared by the Screening Committee will not be filled up should be within 1% of the cadre strength. The remaining vacancies meant for direct recruitment which are not cleared by the Screening Committee will not be filled up by promotion or otherwise and these vacancies will be abolished. In the said OM dated 16.5.2001, it is also stipulated that vacancies finally cleared by the screening committee will be filled up applying the rules for reservation, handicapped and compassionate appointment quota. The Department of Personnel and Training further clarified vide its OM No. 14014/5/02-Estt (D) dated 4.7.2002 that 5% quota for compassionate appointment is to be worked out with reference to the direct Recruitment vacancies in each recruitment year finally approved for filling by the prescribed screening committee under the optimisition policy of the Govt. contained in the Department of Personnel and Training OM No. 2/8/2001-PIC dated 16.5.2001. 5. As per the educational qualification of the applicant, she is eligible for consideration for the post Postal Asstt. As per rectt. rules of Postal Assts., 50 of the vacancies are to be filled in by the promotions from lower grade and the remaining vacancies are to be filled by direct recruitment. 5. As per the educational qualification of the applicant, she is eligible for consideration for the post Postal Asstt. As per rectt. rules of Postal Assts., 50 of the vacancies are to be filled in by the promotions from lower grade and the remaining vacancies are to be filled by direct recruitment. As per D.O. P&T OM dated 16.5.01 that is to be limited to ⅓rd of the direct recruitment vacancies arising in the year subject to 1% of ceiling of total strength of the cadre. 6. The case of the applicant was considered by the Circle Relaxation Committee against 'the vacancies of the year 2000 on 17.1.2001. There were 45 vacancies for direct recruitment quota in the Postal Assistants cadre in the year 2000. Under the ceiling of 500 of 45 vacancies, two vacancies were earmarked for appointment on compassionate grounds. The Circle Relaxation Committee considered the case of the applicant alongwith 72 other cases against the said two vacancies available for the purpose. After examining all cases, the Circle Relaxation Committee approved two cases which were found most indigent amongst the 72 cases and rejected the remaining cases including the case of applicant due to non-availability of the vacancies' for the purpose. As per the comparative chart enclosed the financial position of the applicant was not found more indigent in comparison to the two selected candidates. The applicant is drawing a family pension of Rs. 2800 + DR which is comparatively much more than that of the selected candidates. The applicant had got terminal benefit of Rs. 4,40,947/- which is also much more than the selected candidates. The applicant is in possession of own house of five rooms costing about Rs. 5 lak and Kisan Vikas Patra of Rs. 2.5 lakh whereas the selected candidates are not in possession of house and other properties. In view of the comparative financial positions explained the position of the applicant is not more indigent than the two selected applicants for the purpose. Since two most indigent cases have already been given appointment and there is no vacancy to help the applicant the CRC after reconsideration of the case of the applicant in the light of the orders of the Hon'ble High Court rejects the case." 9. It is this decision of the Circle Relaxation Committee which has now been impugned by the petitioner in the present writ petition. 10. It is this decision of the Circle Relaxation Committee which has now been impugned by the petitioner in the present writ petition. 10. It is unfortunate that the matter concerning the compassionate appointment of the petitioner has come up for consideration on more than one occasion. However, it cannot be lost sight of that an appointment on compassionate ground is an exception and rather by way of relaxation to the recruitment under the Recruitment Rules. The underlying principle for appointment on compassionate ground is to render immediate assistance to the family of the Government servant whose sole earning member dies in harness leaving the family in financial crisis; to enable such family to tide over the critical period. Obviously, such appointment on compassionate ground has to be in accord with the policy so framed. The Department of Post has framed the policy for appointment on compassionate ground by relaxation of recruitment rules which, inter-alia provides that only 5% vacancies that arise for direct recruitment within a year can be filled up by appointment on compassionate ground. If the applicants for appointment on compassionate ground exceed the available vacancies in that category, then needless to say, it becomes incumbent upon the employer to examine comparative merit of such applicants and grant appointment to the more deserving applicant. Pursuant to the last order of this Court dated 31.10.2002, the Circle Relaxation Committee re-examined the petitioner's application for appointment on compassionate ground for the vacancies available for direct recruitment in the year 2000. It appears from the consideration of the matter by the Circle Relaxation Committee that there were 45 vacancies for direct recruitment quota in the Postal Assistant Cadre in the year 2000. 5% of the 45 vacancies comes to 2 vacancies which could be earmarked for appointment on compassionate ground in the year 2000. It is true that while considering the case of the petitioner for the vacancies available in the year 2000, the Circle Relaxation Committee considered the waiting list and also the applications for the year 2000 for appointment on compassionate ground and, thus, there were in all 72 applications. As noticed above only 2 vacancies were available for the purpose of appointment on compassionate ground. The case of the present petitioner was found far less meritorious than the two who were appointed against the vacancies of the year 2000. As noticed above only 2 vacancies were available for the purpose of appointment on compassionate ground. The case of the present petitioner was found far less meritorious than the two who were appointed against the vacancies of the year 2000. The comparative chart is available on record and no exception can be taken to the conclusion or the comparative assessment made by the Circle Relaxation Committee that Smt. Maya Rathore and Smt. Gayatri Sharma were more deserving for appointment on compassionate ground against the vacancies of the year 2000. In so far as Sint. Maya Rathore is concerned, her husband died on 5.7.1997. She received terminal benefits of Rs. 2,95,721/- and has been.drawing family pension of Rs. 2,200/- plus DR. She has one son (14 years) and one daughter (11 years). Smt. Maya Rathore has no immovable property nor any income from the property. The husband of Smt. Gayatri Sharma died on 7.5.1996. She received terminal benefits of Rs. 2,20,732/- and has been drawing family pension of Rs. 1,620/- plus DR. She has three daughters (12 years, 10 years and 7 years). In comparison of these two ladies who have been given appointment on compassionate ground when we look at the case of the present petitioner it is seen that her husband died on 4.12.1999; she received terminal benefits of Rs. 4,40,957/- and has been receiving family pension of Rs. 2,800/- plus DR. She has two daughters (16 years and 10 years). She also has property of her own (five rooms worth Rs. 5 lacs) and KVP of Rs. 2,50,000/-. Therefore, rejection of her claim for appointment on compassionate ground in comparison to the other two ladies who have been given appointment having been found most indigent amongst 72 applicants cannot be said to suffer from any legal flaw. As a matter of fact there is no averment or material to indicate that out of 72 cases which were considered against the vacancies of the year 2000, any applicant less indigent than the present petitioner has been given appointment on compassionate ground even against the vacancies of the subsequent years, say 2001 or 2002. 11. We are, thus, of the considered view that though the case of the petitioner is hard and unfortunate, no direction can be given to the respondents for her appointment on compassionate ground or for fresh consideration of the matter. 11. We are, thus, of the considered view that though the case of the petitioner is hard and unfortunate, no direction can be given to the respondents for her appointment on compassionate ground or for fresh consideration of the matter. The case of the petitioner has already been examined on more than one occasion and no further consideration is required. 12. The counsel for the petitioner invited our attention to a decision of Patna High Court in the case of Rajesh Kumar Paney v. Union of India & Others 2004 (2) ATJ 243 . The Single Judge of the Patna High Court in paragraph 3 of the report noticed the office memorandum issued by the Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training), Government of India, New Delhi alongwith a copy of the scheme for compassionate appointment. The Single Judge noticed about the object and provisions of the scheme thus : "The object of the scheme is to grant appointment on compassionate grounds to a dependent family member of a Government servant dying in harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood, to relive the family of the Government servant concerned from financial destitution and to help it get over the emergency. Undisputedly, the son is included in the definition of dependent family member. Under the heading Determination/Availability of Vacancies" it is observed in clause (e) that employment under the scheme is not confined to the Ministry/Department/Office in which deceased/medially retired Government servant had been working. Such appointment can be given anywhere under the Government of India depending upon availability of a suitable vacancy meant for the purpose of compassioante appointment. Clause (f) says 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 any early date appointment on compassionate grounds to those in the waiting list." 13. In paragraph 4 of the report, the Single Judge observed thus "Reading the clause under the heading "Determination/Availability of vacancies" it would make it clear that the appointment can not be confined to the particular department only but such appointment have to be made in other departments also." 14. In paragraph 4 of the report, the Single Judge observed thus "Reading the clause under the heading "Determination/Availability of vacancies" it would make it clear that the appointment can not be confined to the particular department only but such appointment have to be made in other departments also." 14. Then in paragraph 6 the Single Judge of the Patna High Court observed that the respondents were obliged to make necessary search, find a suitable job/vacancy for the petitioner and issue order in his favour. We are unable to countenance the view of the Single Judge as observed in paragraph 6 of the report. 15. The writ petition, accordingly, deserves to be dismissed .and is dismissed.Petition dismissed. *******