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2015 DIGILAW 380 (JHR)

Baley Mai Bansingh v. Union of India

2015-03-18

RONGON MUKHOPADHYAY

body2015
Order Heard Mr.K.K.Singh learned counsel for the petitioner and Mr. Prabhash Kumar, learned counsel for the respondents. 2. It has been submitted on behalf of respondents that in terms of Section 14 of Administrative Tribunal Act an alternative remedy is available with the petitioner for filing an application before the Central Administrative Tribunal but in view of the fact that the matter is with respect to compassionate appointment which is pending since 2006 as such, I propose to dispose of the instant writ petition after hearing the submissions made on behalf of parties. 3. In this writ petition the petitioner has prayed for quashing letter no. AMD-1/15/98-Rectt./PF/508 dated 7th April, 2005 issued by the respondent no.3 by which the prayer of the petitioner for appointment on compassionate ground consequent upon the death of the husband of the petitioner was rejected. 4. The husband of the petitioner namely Mangu Bansingh was appointed in the respondent Directorate on 26.2.1982 as Helper 'A'. In course of his employment the husband of the petitioner passed away on 27.5.1999 and after the death of her husband the petitioner had submitted an application before the authorities concerned for her appointment on compassionate ground but, no positive steps had been taken by the concerned authorities and ultimately the letter dated 7.4.2005 was issued which is impugned to the present writ petition by which the prayer of the petitioner for appointment on compassionate ground was rejected on account of the fact that there was no suitable vacant post available in order to accommodate the petitioner. 5. The learned counsel for the petitioner has assailed the order dated 7.4.2005 by submitting that the said order has been passed without considering the fact that there was a vacant post available and since the petitioner was a member of Schedule Tribe in terms of reservation followed by the department she should have been accommodated by appointing her on compassionate ground. 6. The learned counsel for the petitioner has also referred to the counter-affidavit filed on behalf of respondents and has laid much stress on the scheme of compassionate appointment of the government more specifically Clause 7(b) which deals with compassionate appointment. It has further been submitted on behalf of the petitioner that in terms of the said provision she should have been adjusted in the recruitment roster against the appropriate category as the petitioner belongs to Schedule Tribe category. It has further been submitted on behalf of the petitioner that in terms of the said provision she should have been adjusted in the recruitment roster against the appropriate category as the petitioner belongs to Schedule Tribe category. It has also been submitted that the scheme aforementioned is not confined to the department of the respondents rather such an appointment can be given anywhere under the Government of India depending upon the availability of a suitable vacancy. 7. It has further been submitted that the respondents have failed to bring on record the vacancies with respect to Schedule Tribe candidates and in such circumstance without considering the entire aspects of the matter the impugned order had been passed rejecting the claim of the petitioner. 8. The learned counsel for the respondents on the other hand has controverted the contention of the learned counsel for the petitioner by relying on the counter affidavit and has submitted that in fact the provision with respect to grant of compassionate appointment in any other department of the government in terms of the said scheme has now been modified vide office memorandum dated 22.6.2001. It has further been submitted by the learned counsel for the respondents that although the claim of the petitioner was rejected but in terms of the directives of the government all such cases were revived and were freshly considered and thereafter vide letter dated 10.1.2014 the case of the petitioner was also reviewed and it was indicated therein that the cases will be considered as per the priority list prepared subject to availability of vacancy. 9. Learned counsel for the respondents further submits that the panel which had been prepared in terms of the indigent index which is earmarked for placing a person in the panel and the petitioner's name figures at Serial no.41. It has further been submitted that so far as the claim of the petitioner with respect to appointment of several similarly situated persons are concerned in fact only four persons have been appointed during 2001-2002 and two persons were not at all appointed on compassionate ground. It is therefore, submitted that petitioner can not equate her case with the persons mentioned above. 10. It is therefore, submitted that petitioner can not equate her case with the persons mentioned above. 10. After hearing the learned counsel for the parties it appears that the claim of the petitioner was earlier considered by the department and vide impugned letter dated 7.4.2005 the same was rejected on the ground of non-availability of sufficient vacancies. Clause 7 of the scheme for Compassionate appointment is with respect to filling up of 5% vacancies falling under direct recruitment quota in Group 'C' and Group 'D' post. It has further been enumerated therein that a person selected for appointment on the compassionate ground should be adjusted in the recruitment roster against the appropriate category i.e. S.C./ST/OBC/General depending upon the category to which he belongs. 11. In this context it has been held in the case of Union of India Vs. Shashank Goswami reported in 2012 (XI) SCC 307 which is as follows:- “9. There can be no quarrel to the settled legal proposition that the claim for appointment on compassionate grounds is based on the premise that the applicant was dependant on the deceased employee. Strictly, such a claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. Appointment on compassionate grounds cannot be claimed as a matter of right. 10. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate grounds is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crises and not to confer a status on the family. Thus, the applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate grounds have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.” 12. The case of the petitioner does not come within Clause 7(b) of the Scheme as the petitioner was never selected for appointment. Appointments on compassionate grounds have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.” 12. The case of the petitioner does not come within Clause 7(b) of the Scheme as the petitioner was never selected for appointment. So far as the contention of the petitioner that if vacancy was not available with the concerned department the authorities should have resorted to Sub Clause 'e' of Clause 7 of the said Scheme which has also been available in the Office Memorandum of the Government of India, Ministry of Personnel, P.G. & Pensions (Department of Personnel & Training) dated 22.6.2001 wherein it has been categorically stated that there are no spare vacancies left to accommodate requests from other Ministries/Departments/Offices for such appointment. Therefore, while no useful purpose is being served by taking up the matter with other Ministries/Departments/Offices of the Government of India to consider such other cases received by them from other Ministries / Departments / Offices for compassionate appointment, it on the other hand only gives false hope to the applicants as grant of such appointment by other Ministries, etc. cannot be guaranteed. Even after rejection of the claim of the petitioner for compassionate appointment vide letter dated 7.4.2005 in terms of the fresh guidelines issued by the DOPT dated 26.7.2012 by which the maximum time limit of three years for considering cases of compassionate appointment prescribed in earlier office memorandum dated 5.5.2003 have been withdrawn and all those cases of compassionate appointment which were deleted from the priority list were again submitted to the Compassionate Appointment Committee for further examination and as such, the case of the petitioner was once again considered and the petitioner was intimated about the same vide letter dated 10.11.2014. The letter dated 10.11.2014 also reveals that the claim of the petitioner which was earlier rejected has been revived and reviewed and that it has been indicated in the said letter that the appointment on compassionate ground is restricted to 5% of direct recruitment vacancies occurring in a year in Group 'C' posts and the cases will be considered as per the priority list prepared subject to availability of vacancies against the 5% quota earmarked for compassionate appointment during the particular year and fulfilling of other conditions. 13. 13. In this context reference may be made to the case of Union of India Vs. Shashank Goswami (Supra). From the entire discussions made hereinabove this Court is of the view that the claim of the petitioner for compassionate appointment has not yet been finally rejected and it is subject to vacancy as has been indicated in the letter dated 10.11.2014. After considering the entire materials on record I do not find any error or illegality in the letter dated 7.4.2005 which has subsequently been revived and reviewed vide letter dated 10.11.2014. 14. Considering the totality of the circumstances enumerated above as also in view of the fact that the case of the petitioner for compassionate appointment has not yet been finally rejected, in such circumstances I do not find any reason to interfere with the impugned order dated 7.4.2005. Accordingly, the instant writ petition being devoid of merit is hereby dismissed.