JUDGMENT The petitioner’s father was working as a draftsman and died in harness on 3rd December, 1997. An application dated 8th September, 1998 was filed praying for appointment under the dying-in-harness scheme. This application was ultimately rejected by an order dated 27th March, 2002, against which, the petitioner preferred writ petition no. 1262 of 202 (S/S), which was allowed by a judgment dated 25th August, 2004. The ground for rejecting the application of the petitioner by the respondents was that only 5% of the vacancies was reserved for persons to be appointed under the dying-in-harness scheme and that the petitioner could not be accommodated in that 5% of vacancies. Further, a sum of Rs. 2,02,236/- was paid to the widow, which mitigates the hardship and, therefore, there was no requirement to give an appointment under the dying-in-harness scheme. The writ court, while allowing the writ petition, held that there was nothing to indicate that the persons, who were given appointment under the dying-in-harness scheme under the 5% quota, were more deserving to the petitioner or had bigger liabilities. The court further found that payment of Rs. 2,02,236/-, which was towards gratuity and provident fund, could not be taken into consideration to mitigate the hardship nor could the said amount be considered to mitigate the financial hardship that would fall on the family upon the death or the deceased. The court further found that the petitioner has a widow mother and two unmarried sisters to look after them and that the petitioner was a member of a scheduled caste and had only applied for a group “D” post, which ought to have been considered. The court while allowing the writ petition, accordingly, directed the respondents to reconsider the matter afresh in the light of the observation made by the Court. 2. Pursuant to the order of the court, the authority reconsidered the matter and again rejected the application of the petitioner by an order dated 8.12.2004. The authority held that 5% of the vacancies are reserved for appointment of persons under the dying-in-harness scheme in the regular cadre and that till the year 2001, there were 184 applications for 24 vacancies. The respondents further found that the committee did not find the case of the applicant to be a fit case for appointment, since the family was paid a sum of Rs. The respondents further found that the committee did not find the case of the applicant to be a fit case for appointment, since the family was paid a sum of Rs. 2,02,236/- and that the age of the deceased was 55 years and due to limited vacancies, appointment could not be offered. The petitioner, being aggrieved has preferred the present writ petition. 3. The respondents have rejected the application of the petitioner on the same grounds, which was set aside by the Court by its earlier order. This court finds that prima facie the respondents have committed a contempt of the order of the court and instead of considering the observations made by the court, the respondents have rejected the application on the same grounds, which was not accepted by the court while allowing the writ by its judgment dated 25th August, 2004. This court by an order dated 30th December, 2009 granted an opportunity to the respondents to cure the defect and reconsider the case of the petitioner. Further time was granted to the respondents by an order dated 17.2.2010. Inspite of time being granted, the respondents have not reconsidered the matter. Shri V.B.S. Negi, learned counsel for the respondents submitted that he has been instructed to inform the court that the respondents are agreeable to reconsider the matter, but no time frame was indicated. This court had categorically directed the respondents to reconsider the matter within a time bound period, which they were not agreeable. Consequently, this court is of the opinion that no useful purpose would be served in remitting the matter and keeping the matter in limbo, especially when the respondents and its committee members are not adhering to the orders of the writ court and are working at their own pace and according to their whims and fancies. This court finds that the petitioner’s father had died in the year, 1997 and thirteen years have elapsed and the matter has not been finalised till date. It would be a travesty of the justice, if this court remits the matter again and directs the authorities to reconsider the matter. In the light of the aforesaid, this court is of the opinion that the writ petition should be decided on merits. 4. The respondents have filed a counter affidavit. It would be a travesty of the justice, if this court remits the matter again and directs the authorities to reconsider the matter. In the light of the aforesaid, this court is of the opinion that the writ petition should be decided on merits. 4. The respondents have filed a counter affidavit. A tabular chart (annexure 3 to the counter affidavit) has been filed indicating that 24 appointments were made in the 5% of the vacancies, which existed till the year 2001. The respondents have also annexed the scheme dated 9.10.1998 for appointment on compassionate ground. Clause 7 relates to determination/availability of vacancies. Clause 7(b), (c), (d) and (f) are relevant, which are quoted hereunder : 7(b). Compassionate appointments can be made up to a maximum of 5% of vacancies falling under direct recruitment quota in any group ‘C’ or ‘D’ post. The appointing authority may hold back up to 5% of vacancies in the aforesaid categories to be filled by direct recruitment through Staff Selection Commission or otherwise so as to fill such vacancies by appointment on compassionate grounds. A person selected for appointment on compassionate grounds should be adjusted in the recruitment roster against the appropriate category viz. SC/ST/OBC/General depending upon the category to which he belongs. For example, if he belongs to S.C. category he will be adjusted against the S.C. reservation point, if he is S.T./O.B.C., he will be adjusted against S.T./O.B.C. point and if he belongs to General category, he will be adjusted against the vacancy point meant for General category. (c) While the ceiling of 5% for making compassionate appointment against regular vacancies should not be circumvented by making appointment of dependent family member of Government servant on casual/daily wage/adhoc/contract basis against regular vacancies, there is no bar to considering him for such appointment if he is eligible as per the normal rules/orders governing such appointments. (d) The ceiling of 5% of direct recruitment vacancies for making compassionate appointment should not be exceeded by utilizing any other vacancies, e.g. sports quota vacancy. (e) Employment under the scheme is not confined to the Ministry/Department/office in which deceased/medically retired Government servant had been working. Such an appointment can be given any where under the Government of India depending upon availability of a suitable vacancy meant for the purpose of compassionate appointment. (e) Employment under the scheme is not confined to the Ministry/Department/office in which deceased/medically retired Government servant had been working. Such an appointment can be given any where under the Government of India depending upon availability of a suitable vacancy meant for the purpose of compassionate appointment. (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/Departments/Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list. 5. Clause 16(c) relates to financial consideration and clause 16(d) relates to appointment on compassionate grounds in a vacancy which is quoted hereunder : (c) The scheme of compassionate appointments was conceived as far back as 1958. Since then a number of welfare measures have been introduced by the Government; which have made a significant difference in the financial position of the families of the Government servants dying in harness/retired on medical grounds. An application for compassionate appointment should, however, not be rejected merely on the ground that the family of the Government servant has received the benefits under the various welfare schemes. While considering a request for appointment on compassionate ground a balanced and objective assessment of the financial condition of the family has to be made taking into account its assets and liabilities (including the benefits received under the various welfare schemes mentioned above) and all other relevant factors such as the presence of an earning member, size of the family, ages of the children and the essential needs of the family, etc. (d) Compassionate appointment should not be denied or delayed merely on the ground that there is reorganization in the Ministry/Department/Office. It should be made available to the person concerned if there is a vacancy meant for compassionate appointment and he or she is found eligible and suitable under the scheme. 6. (d) Compassionate appointment should not be denied or delayed merely on the ground that there is reorganization in the Ministry/Department/Office. It should be made available to the person concerned if there is a vacancy meant for compassionate appointment and he or she is found eligible and suitable under the scheme. 6. The respondents have also annexed an office memorandum dated 22nd June, 2001 in which it was decided that paragraph 12 of the scheme of 1998 would take into account the position regarding the availability of the vacancy for such appointment only if a vacancy meant for appointment on compassionate ground was available within a year in the concerned administrative ministry and, that too, within the ceiling of 5% of vacancies. 7. In the light of the aforesaid, it is not clear as to how the respondents determined the vacancies. Whether the vacancies are determined at the end of the year or the cumulative vacancies are taken into consideration as and when the committee sits to consider the applications for appointment on compassionate ground. 8. From the averments made in the counter affidavit, it is clear that cumulative vacancies, as existing in the year 2001 was taken into consideration alongwith the cumulative application which were brought before the committee which were 184 in numbers. From a perusal of the tabular chart, annexure 3 to the counter affidavits, it is clear that out of the 24 persons, who were given appointment, 19 persons were appointed, whose father or mother had died after the death of the petitioner’s father, that is to say, that the applications were received much after the petitioner’s application. The chart further indicates that 5 persons were appointed, whose father or mother had died prior to the death of the petitioner’s father. The chart further indicates that one of the deceased person had also attained the age of 55 years. The tabular chart as well as the averments contained in the counter affidavit indicates the relevant criteria which the committee has considered namely the age of the Government servant at the time of the death, number of dependents and the amount received by the family after the death of the government servant. The tabular chart as well as the averments contained in the counter affidavit indicates the relevant criteria which the committee has considered namely the age of the Government servant at the time of the death, number of dependents and the amount received by the family after the death of the government servant. Clause 7(b) of the scheme indicates that compassionate appointment can be made up to the maximum 5% of vacancies under the direct recruitment quota and such vacancies are required to be filled up against the appropriate category, such as S.C., S.T., O.B.C. or General depending on the category to which the applicant belongs, for example, if a candidate belongs to a S.C. category, he or she would be adjusted against the S.C. category and if the candidate belongs to a general category he or she would be adjusted against the vacancies meant for general category. The tabular chart, annexure CA3, does not indicate the categories, in which these 24 persons have been appointed. The petitioner is a S.C. category and there is nothing to indicate in the tabular chart that another S.C. category candidate, who was better and far more deserving, had been adjusted. Consequently, the court is of the opinion that clause 7(b) of the scheme has not been followed. 9. Clause 7(f) of the scheme indicates that if sufficient vacancies are not available the persons would be kept in the waiting list and it would also be open to the respondents to take up the matter with the ministry of the Government of India to provide an early date appointment on compassionate grounds to those who are kept in the waiting list. 10. In the light of this provision, two things are clear, namely, that if the vacancies are not available, the candidate is kept in the waiting list and would be considered as and when a vacancy arises in the coming years. Further, it is open to the ministry to take up the matter with the Government of India to provide an early date appointment without waiting for vacancies to arise in order to adjust the candidate for appointment on compassionate grounds. Further, it is open to the ministry to take up the matter with the Government of India to provide an early date appointment without waiting for vacancies to arise in order to adjust the candidate for appointment on compassionate grounds. This provision has been made to ensure that families, who are in financial need and where an appointment is required to be given immediately, the authorities are not required to wait for a vacancy to occur and, in exceptional circumstances, could appoint a person on compassionate grounds by creating supernumerary post. In the light of this provision clause 7(f) of the scheme and comparing it with the tabular chart annexure CA3, the court finds that the persons, who have been kept in the waiting list have not been given a preferential treatment and, candidates, whose father or mother died at a latter stage, have been given preference. The court finds that out of 24 vacancies, 19 persons have been given appointment, whose father or mother have died much after the death of the petitioner’s father. In the opinion of the court, this action of the respondents in discriminatory. The application of the petitioner was pending prior in point of time to the other applications and the petitioner’s application was required to be considered in the light of the provision of clause 7(f) of the scheme and was liable to be adjusted first than to those candidates, whose parents had died at the later point of time. This has to be read in the light of the provision of clause 16(d), which states that compassionate appointments should not be denied or delayed and should be made available if there is a vacancy meant for compassionate appointment and the applicant was found eligible and suitable under the scheme. Once the petitioner was found eligible and suitable under the scheme, he should have been adjusted first and the application of a candidate, whose parents had died later on, was liable to be considered subsequently. Consideration of both the applications simultaneously and then finding out as to who is the better person appears to be arbitrary. When a vacancy exists in a particular year, applications of that particular year should alone be considered and not cumulative applications spanning several years. It is not in consonance with the scheme formulated by the respondents. Consideration of both the applications simultaneously and then finding out as to who is the better person appears to be arbitrary. When a vacancy exists in a particular year, applications of that particular year should alone be considered and not cumulative applications spanning several years. It is not in consonance with the scheme formulated by the respondents. This view of mine is fortified by the office memorandum dated 22nd June, 2001 issued by the respondents, which states that vacancy meant for appointment on compassionate ground will be available within a year. 11. In the light of the aforesaid, the court finds that the reasoning adopted by the respondents in rejecting the application of the petitioner, was not in consonance with the scheme formulated by them. Consequently, the order of the respondents dated 8th December, 2004 cannot be sustained and is quashed. The writ petition is allowed. Since this court has already expressed its opinion that the respondents have kept the matter in abeyance for the last 13 years and are not considering the application in the time bound manner and this court further finds that admittedly the petitioner was found eligible by the respondents for the appointment on compassionate grounds under the scheme framed by the respondents but could not be given an appointment as the vacancies were filled up by the heirs whose father or mother had died subsequently to the death of the father of the petitioner, consequently no useful purpose would be served in remitting the matter to the authorities to reconsider the matter. This court is of the opinion that a positive direction should be issued. Consequently, the impugned order is quashed and the writ petition is allowed. A writ of mandamus be issued commanding the respondent no. 1, who is the appointing authority to issue an appointment letter to the petitioner on a suitable post in which he is eligible under the dying in harness rules within three months from the date of the production of a certified copy of this order.