JUDGMENT By the Court.—Heard Smt. Archana Singh, Advocate holding brief of Sri Ajit Kumar Singh, learned counsel for the Union of India and Sri I.P. Srivastava, learned counsel for the respondent No. 2. The challenge in this writ petition is to the order of the Central Administrative Tribunal whereby the claim of the respondent No. 2 for compassionate appointment has been allowed and the orders dated 14.9.1998 and 4th July, 2002 have been set-aside. 2. The petitioners contend that the Tribunal has committed an error by allowing the claim petition in view of the fact that the claim of the respondent No. 2 had already been rejected as he himself had voluntarily refused to take up the job of a Sweeper and, therefore, the respondent No. 2 cannot claim compassionate appointment as a matter of right. It is further submitted that several reasons have been given while passing the order dated 4th July, 2002, namely, that vacancies were not available within the 5 % quota and the appointment on compassionate ground is not a matter of right and further respondent No. 2 and his family was financially well off so as to provide enough aid and hence compassionate appointment was not permissible in view of the guide lines framed by the Government Policy. Another reason given is that the claim is on account of death of respondent No. 2, who died on 14.9.1995 and, therefore, after seven years, the compassion did not exist so as to give rise to any claim. 3. Sri I.P. Srivastava submits that the answering respondent was prepared even to perform the job of a sweeper and the appointment of the answering respondent was cancelled vide order dated 14th November, 1998 which is bereft of any reasons. He further submits that so far as the subsequent order dated 4th July, 2002 is concerned, the same reflects non application of mind, inasmuch, it does not even refer to the earlier offer of compassionate appointment made by the respondents and further none of the aforesaid contingencies are available for denying compassionate appointment as have been indicated therein. He further submits that the answering respondent is even now prepared to accept the job of a sweeper and his claim survives inasmuch as he had approached the authority well within time. 4. Having heard learned counsel for the parties. He further submits that the answering respondent is even now prepared to accept the job of a sweeper and his claim survives inasmuch as he had approached the authority well within time. 4. Having heard learned counsel for the parties. It is evident that the claim for compassionate appointment was made immediately after the death of the father of the answering respondent. The said claim was processed and the appointment was offered to the respondent on 31st July, 1998. It appears that another application had been moved by the answering respondent on 22nd May, 1998 which was also pending consideration for being appointed as a Majdoor. The answering respondent appears to have made a request to the authorities that he would be unable to perform the job of a sweeper due to fear of a social boycott and, therefore, he may be offered the job of a Majdoor. The cancellation order of 14th November, 1998 appears to have been made only after such request had been made. The said cancellation order coupled with the subsequent rejection on 4th July, 2002, were challenged by means of an application before the Tribunal and the Tribunal after considering the submissions raised, allowed the claim of the petitioner quashing the aforesaid two orders and the authority was directed to re-consider the applicant for appointment on the post of Majdoor and in the interregnum period was also directed to allow the respondent to continue as Safaiwala. 5. To our mind in view of the facts as disclosed, the Tribunal could not have directed for a reconsideration of the appointment of the respondent on the post of Majdoor as there is no second choice available in matters of compassionate appointment as held by the Apex Court in the case of State of Rajasthan v. Umrao Singh, 1994 6 SCC 560 . A perusal of the application moved by the respondent subsequently on 24.9.1998 does not indicate that the respondent had surrendered his right to receive compassionate appointment and had made a request to the authority to change his status on account of a fear of social stigma being attached on working as Safaiwala. The respondent never wanted to surrender his right of employment and wanted a resolution of the aforesaid apprehension in his mind. The same was taken to be denial by the respondent to receive compassionate appointment and accordingly it was cancelled on 14.11.1998. The respondent never wanted to surrender his right of employment and wanted a resolution of the aforesaid apprehension in his mind. The same was taken to be denial by the respondent to receive compassionate appointment and accordingly it was cancelled on 14.11.1998. The aforesaid order of cancellation however, does not mention any such reason. Nonetheless from the pleadings, it appears that on account of a subsequent application dated 24.9.1998 having been moved by the respondent his earlier appointment was cancelled. 6. It appears that prior to the said cancellation, there was also another application of the respondent dated 22nd May, 1998 that was considered by the Head Quarters and the Chief Engineer rejected the request of the petitioner on other considerations namely that 5% vacancies were not available, that the claim of compassionate appointment was highly belated and that sufficient finances had been released to the benefit of the members of the family. The said order was passed on 4th July, 2002 without taking notice of the earlier claim of the petitioner which had been accepted and the appointment had been subsequently cancelled. The order dated 4th July, 2002 was passed unmindful of the aforesaid developments and, therefore, the same reflected non application of mind. 7. The question as to whether the respondent was entitled for compassionate appointment was admitted by the petitioners, who had already issued a letter of appointment to the petitioner on 31st July, 1998. The same, therefore, could not have been reopened under the order dated 4th July, 2002. Needless to mention that an interim order was passed by this Court in view of the judgment in the case of Ram Pratap Singh v. State of U.P. and others, 2004 (4) ESC 2002 (All), that does not lay down the correct law and stands overruled in view of the Division Bench judgment in the case of Raj Kumar Jaiswal v. Punjab National Bank and others, 2005 (4) ALJ 3703 to which one of us (Hon. Ashok Bhushan, J.) was a member. Further the ratio of the decision in the case of Umesh Kumar Nagpal v. State of Haryana and others, JT 1994 (3) SC 525, would not be attracted on the peculiar facts of this case. 8. The Tribunal, therefore, rightly set aside the orders but it erred in issuing a further direction to appoint the respondent as Majdoor as and when vacancy is available. 8. The Tribunal, therefore, rightly set aside the orders but it erred in issuing a further direction to appoint the respondent as Majdoor as and when vacancy is available. The aforesaid direction of the Tribunal was, therefore, beyond the claim of compassionate appointment of the respondent which could have been lawfully made. 9. We, therefore, partly allow this writ petition and set aside that part of the order by which a direction has been given to appoint the respondent as a Majdoor. We clarify that with the quashing of the order dated 4.11.1998 the respondent shall be now offered a fresh appointment as Sweeper/Safaiwala within two months and a order considering the same shall be passed within two months from today. The respondent petitioner shall be entitled to consequential benefits only from the date of fresh appointment and not otherwise. 10. The writ petition is partly allowed subject to the directions made hereinabove. —————