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2012 DIGILAW 1725 (DEL)

SUMEET VERMA v. MUNICIPAL CORPORATION OF DELHI

2012-05-08

BADAR DURREZ AHMED, V.K.JAIN

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JUDGMENT BADAR DURREZ AHMED, J. (ORAL) W.P.(C) 2713/2012 & CM 5830/2012( for delay in re-filing the petition) 1. The delay in re-filing is condoned. 2. The petitioner is aggrieved by the order dated 30.08.2011 passed in O.A. No.3112/2011 by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as “the Tribunal”), whereby the petitioner’s said Original Application for consideration of his case for compassionate appointment was rejected. 3. The petitioner’s father, who was a peon with the MCD, died on 20.10.2001. He left behind his widow Smt. Usha Devi and three sons, namely, Shri Bhagwan, Mukesh Verma and Sumeet Verma and one daughter - Aarti Verma. At that point of time, the petitioner - Sumeet Verma was minor and was about ten years of age. The petitioner’s elder brother Mukesh Verma had applied for compassionate appointment in place of their father, however, that application was rejected on 03.07.2006 on the ground that the family was not in a “distressful state” and furthermore that no post was available with the respondents within the 5% quota for compassionate appointment. 4. The petitioner, on attaining majority, applied to the respondents for considering his case for compassionate appointment on 19.01.2009 for the post of beldar or any other post. As no reply was received by the petitioner, he approached the Tribunal by filing an Original Application, being OA 3151/2010, which was disposed of by the Tribunal on 21.09.2010 by directing respondents to consider the case of the petitioner for compassionate appointment and to decide the same in accordance with law. After such consideration, the petitioner’s application was rejected. 5. Essentially, the Tribunal, in the impugned order, considered the case of the petitioner from the standpoint of whether there was any vacancy available within the 5% quota for compassionate appointment and as to whether the petitioner’s application for compassionate appointment could be considered once his brother’s application had been rejected as far back as on 03.07.2006 on the ground that the family was not in such a precarious financial condition that there was a requirement for invoking the provision of compassionate appointment. The Tribunal, after examining these aspects of the matter, came to the conclusion that the petitioner’s application could not be accepted because, first of all, his brother’s application had already been rejected in 2006 and that the petitioner cannot now raise the plea for compassionate appointment after over nine years, merely on the ground that he has now attained majority. Apart from this, the Tribunal found that the scheme for compassionate appointment was workable only to the extent of availability of vacancies for compassionate appointment which were limited to 5% of the vacancies falling under the direct recruitment quota. Unfortunately, for the petitioner, even that condition was not satisfied inasmuch as there was no vacancy available within the 5% quota for compassionate appointment. Thus, on both counts, the Tribunal rejected the Original Application filed by the petitioner. 6. The Tribunal had also placed reliance on the decision of the Supreme Court in the case of Hindustan Aeronautics Ltd. vs. Smt. A.Radhika Thirumalai : (1996) 6 SCC 394 , wherein the Supreme Court held that appointment on compassionate grounds can be made only if a vacancy is available. If no vacancy is available, there is no duty cast upon the employer to appoint any person on compassionate grounds. 7. We also note that the scheme for compassionate appointment which is set out in the OM dated 09.10.1998 issued by the DoPT clearly defines the object thereof. According to the scheme, the object 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 relieve the family of the Government servant concerned from financial destitution and to help the family get over the emergency. It is for this reason that the scheme is worked normally within three years of the death of the Government servant. In the present case, we find that the Government servant, namely, the petitioner’s father died on 20.10.2001. It is now over 11 years since his death and, therefore, it cannot be regarded as an emergency condition in order to enable the family to tide over the financial destitution which has resulted because of the death of the Government servant. In the present case, we find that the Government servant, namely, the petitioner’s father died on 20.10.2001. It is now over 11 years since his death and, therefore, it cannot be regarded as an emergency condition in order to enable the family to tide over the financial destitution which has resulted because of the death of the Government servant. Furthermore, we may point out that on the date on which the petitioner’s father died, i.e. on 20.10.2001, the petitioner was minor of about ten years of age. Consequently, he could not have been considered for employment at that point of time or even within three years of the death of the petitioner’s father because the eligibility requirement for an applicant under the compassionate appointment scheme is that he should be eligible for the post in all respects under the provisions of the relevant recruitment rules which included the minimum age of 18 years which was not relaxable any further. 8. Apart from this, in cases of belated request for compassionate appointment also, the said OM specifically stipulates that whether a request for compassionate appointment is belated or not, may be decided with reference to the date of death or retirement on medical ground of a Government servant and “not the age of the applicant at the time of consideration”. Thus, it is clear that the request for compassionate appointment made by the petitioner in 2009 was clearly belated and the plea taken by the petitioner that he had recently attained majority would be of no help to him in view of the clear stipulation referred to above in the said OM that the question as to whether request for compassionate appointment is belated or not is to be considered with reference to the date of death of Government servant and not with reference to the age of the applicant at the time of consideration. 9. Thus, we find that there is no infirmity in the impugned order inasmuch as there is no vacancy in the 5% quota for compassionate appointments and secondly, the application on the part of the petitioner is highly belated and, thirdly, the application of the petitioner’s brother for a similar compassionate appointment was rejected way back on 03.07.2006 and that, too, on the ground that the family was not under distress. Consequently, there is no merit in the present writ petition. Consequently, there is no merit in the present writ petition. The same is dismissed with no order as to costs.