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Jharkhand High Court · body

2009 DIGILAW 20 (JHR)

Nand Kishore Sharma v. Union of India

2009-01-07

AMARESHWAR SAHAY

body2009
JUDGMENT Heard the learned counsel for the parties and with their consent this writ application is being disposed of at this stage itself. The petitioner has filed this writ application for quashing of the orders dated 17/12/2003 and 01/03/2004, contained in Annexure-3 and 5 respectively, passed by the Assistant Inspector General, CISF, Patna, rejecting the claim of the petitioner for appointment on compassionate ground on the ground that there is no post vacant for appointment on compassionate ground. The father of the petitioner namely, Ambika Sharma was employed as Carpenter in CISF and was posted at Bokaro. He died prematurely on 25/09/2001 at the age of 44 years during his service period. The petitioner, being the eldest son, made a representation before the Chief Inspector General, CISF, requesting for his appointment on compassionate ground stating that his father was the only bread earner of his family and he died leaving behind his wife, two sons and three daughters and no one in the family is employed. According to the petitioner, though his case was considered for appointment on the post of Constable but he was declared unfit as his height was found short than the required minimum height for the post of Constable. Subsequently, by order dated 26/04/2003, he was directed to appear for physical test for his appointment to the post of Peon. He was declared fit and then was directed to appear before the Divisional Headquarter at Patna for his medical test on 29/04/2003 but at Patna he was informed that his name was not in the merit list and, accordingly, he was directed to apply again for the post of Peon. His case was again considered for appointment to the post of Peon but as it appears that though he was found fully fit for the post of Peon but his case was rejected on 17/12/2003 by issue of Annexure-3 on the ground of non-availability of the post. The petitioner also states that the Deputy Inspector by issue of Annexure-4, addressed to the Commandant, recommended the case of the petitioner for his appointment on compassionate ground but again by order dated 1-2/03/2004, contained in Annexure-5, the claim of the petitioner was rejected on the ground of non-availability of the post. The petitioner also states that the Deputy Inspector by issue of Annexure-4, addressed to the Commandant, recommended the case of the petitioner for his appointment on compassionate ground but again by order dated 1-2/03/2004, contained in Annexure-5, the claim of the petitioner was rejected on the ground of non-availability of the post. The petitioner alleges that at one hand the case of the petitioner for appointment on compassionate ground has been rejected on the ground of non-availability of the post but on the other hand the respondents have provided employment on compassionate ground to other candidates on the basis of the selection made on 03/08/2003. The names of those persons have been stated in Paragraph-19 of the writ petition. Accordingly, it is submitted that the action of the respondents are discriminative, unfair and unjustified. A counter affidavit has been filed by the respondents, wherein it has been stated that the case of the petitioner for appointment to the post of Constable was rejected as he could not qualify due to under height and his case for appointment on the post of Peon could not be considered due to non-availability of the vacancy and now since more than three years have already been completed and, therefore, the case of the petitioner cannot be considered. So far as the allegation made by the petitioner regarding discrimination is concerned, in Para-27 of the counter affidavit, it has been stated that those persons, whose name are found at Sl. Nos. (i) to (iv) in para-19 of the writ petition, have not been recruited by the CISF. So far as Sl. Nos. (v) to (viii) are concerned, it is stated that their names appeared in the merit list and, therefore, they were appointed on compassionate ground. Mrs. Pal, learned counsel appearing for the petitioner by referring to the revised Scheme for compassionate appointment issued by the Government of India, which have been annexed by the respondents in their counter affidavit as Annexure-A, submitted that there is provision for relaxation of the eligibility criteria for appointment on compassionate ground. Scheme No. 7 speaks about the determination/availability of vacancies. Pal, learned counsel appearing for the petitioner by referring to the revised Scheme for compassionate appointment issued by the Government of India, which have been annexed by the respondents in their counter affidavit as Annexure-A, submitted that there is provision for relaxation of the eligibility criteria for appointment on compassionate ground. Scheme No. 7 speaks about the determination/availability of vacancies. Sub-clause (f) of Scheme-7 speaks 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/Department/Officers of the government of India to provide at an early date appointment on compassionate grounds to those in the waiting list. Mrs. Pal further submitted that no waiting list was prepared by the respondents concerned pursuant to the Scheme 7 (f) and if waiting list would have been prepared the case of the petitioner could have been considered for future appointment. Scheme-7 reads as under:- “7. DETERMINATION/AVAILABILITY OF VACANCIES (a)….. (b)…. (c)….. (d)……. (e)…….. (f) 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/Department/Officers of the government of India to provide at an early date appointment on compassionate grounds to those in the waiting list.” After hearing the parties at length, I find that the respondents have not considered the case of the petitioner in the light of the revised Scheme for appointment on compassionate ground, which has been annexed as Annexure-A to the counter affidavit. I also find that the claim of the petitioner has only been rejected on the ground of non-availability of the post. The respondent authorities aught to have considered the case of the petitioner in the light of the Scheme 7 (f) as already quoted herein above. The matter requires to be reconsidered. In view of the discussions and findings above, this writ application is allowed. The respondent authorities aught to have considered the case of the petitioner in the light of the Scheme 7 (f) as already quoted herein above. The matter requires to be reconsidered. In view of the discussions and findings above, this writ application is allowed. The orders dated 17/12/2003 and 01/03/2004 as contained in Annexure-3 and 5 respectively, are hereby quashed and the concerned respondent is directed to consider the case of the petitioner afresh in the light of the Scheme for appointment on compassionate ground in its right perspective and take a decision in accordance with law within a period of eight weeks from the date of receipt/ production of copy of this order.