JUDGMENT : J.B. Pardiwala, J. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs : "(A) Be pleased to admit this petition; (B) Be pleased to issue appropriate writ, order or direction in the nature of mandamus under Article 226 of the Constitution directing the respondent to consider the case of the petitioner for appointment on the compassionate ground on either in Group C. or Group D post in place of his father I.H. Jadhav who died in harness in the respondent department on 29.5.1998 after declaring that, the action of the respondent in not offering appointment on compassionate ground is arbitrary, illegal, discriminatory, and violative of Article 14 and 16 of the Constitution as also against the settled legal position according to the law laid down by this Honble Court and the Honble Supreme Court of India. (C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to pass appropriate orders, directing the respondent to provide work to the petitioner on temporary basis as was done in the year 1999 and thereafter, direct the respondent to consider the case of the petitioner for regular appointment on compassionate grounds in case of vacancy in Group C. or Group D in future in the respondent department; (D) Be pleased to pass any other and further order as may be deemed fit and proper in the interest of justice;" 2. It appears from the materials on record that the father of the writ-applicant, viz. I.H. Vaghela, was serving as a Record Clerk, Area Accounts Office, Controller of Defense, Southern Command, Ahmedabad. The father of the writ-applicant passed away on 29th May 1998 while in service. The writ-applicant, as a son and one of the dependents, preferred an application dated 10th May 1999, seeking compassionate appointment in Group-C. The writ-applicant was called for the written test on 12th August 1999 which, unfortunately, he could not clear so far as the vacancies in Group-C is concerned. Later on, it appears that he was offered temporary appointment vide order dated 22nd September 1999. However, vide communication dated 4th May 2000, he was informed that there was no vacancy in Group-D. On 15th February 2001, the writ-applicant was informed that all the vacancies in Group-C and Group-D were filled up. Later on, it appears that he was offered temporary appointment vide order dated 22nd September 1999. However, vide communication dated 4th May 2000, he was informed that there was no vacancy in Group-D. On 15th February 2001, the writ-applicant was informed that all the vacancies in Group-C and Group-D were filled up. On 12th June 2001, a letter was addressed by the writ-applicant to reconsider his case. By communication dated 21st June 2001, the request to reconsider was turned down. On 22nd April 2002, another application was filed by the writ-applicant as there was a likelihood of vacancies occurring in Group-D. Vide communication dated 8th September 2003, the request of the writ-applicant was rejected. 3. Being dissatisfied, the writ-applicant has come up with this writ-application. 4. On behalf of the respondent, an affidavit-in-reply has been filed, inter alia, stating as under : "2. At the outset I say and submit the contents of the speaking order dated 25.8.2003 issued to the petitioner, interalia, informing him the true and correct facts of giving appointments on compassionate grounds. It is respectfully stated and submitted that 5% of Direct Recruitment quota is earmarked for the appointment on compassionate grounds in Group 'D and this 5% posts have already been filled up by Head Quarters Office from time to time and as such there is no vacancy available within the ceiling of 5% of DR quota meant for compassionate appointments. It is also brought to the notice of the petitioners the several pronouncements of the Hon'ble Supreme Court wherein the Apex Court has time and again cautioned that the appointment on compassionate grounds can be made only if a vacancy is available for that purpose. It is further most humbly and respectfully stated and submitted that in the present case, there is no vacancy available so as to appoint the present petitioner on compassionate ground and the respondent cannot travel beyond the 5% quota provided for Direct Recruitment on compassionate grounds and, therefore, there is no merit in the petition and the petition is required to be dismissed with cost at threshold itself. 3. I say and submit that the petition is required to be dismissed on the ground of delay and latches in as much as the petitioner has challenged the Order dated 25.8.2003 after a gap of more than one and half years. 3. I say and submit that the petition is required to be dismissed on the ground of delay and latches in as much as the petitioner has challenged the Order dated 25.8.2003 after a gap of more than one and half years. It is submitted that the petitioner is more vigilant and eager about getting appointment on compassionate grounds, the petitioner ought to have initiated proceedings immediately on receipt of the Order dated 25.8.2003. In the present case, the petitioner waited for a long period of more than 18 months and thereafter, as if woke up from the slumber, filed the present petition which cannot be entertained and is required to be rejected only on the ground of delay and latches. 4. I say and submit that Smt. Samiben, widow of I.H. Vaghela, getting the family pension of Rs.2,163/- pm. as well as terminal benefit and therefore it is not correct to say that they are unable to meet with daily expenses and therefore it is submitted that the widow of deceased employee is sufficiently protected by family pension as well as other terminal benefits, and when there is no vacancy, to provide employment to the petitioner on compassionate ground, available with the respondent, and when the respondent cannot go beyond 5% DR quota, the grievance of the petitioner for appointment on compassionate grounds has no merit and therefore the petition must meet with the fate of rejection and rejection only. 5. I say and submit that, in fact, the petitioner has been given chance to appear for written test for the post of Group 'C' by the respondent on 19.8.1999, however, the petitioner was unable to pass in the test conducted for that purpose by the respondent and therefore he was found not suitable for the post of Clerk. It is further submitted that however the case of the petitioner was considered for the "Group D" post of Peon on the compassionate ground, however, the petitioner has not been issued the appointment order for want of vacancy under the 5% DR quota meant for compassionate appointment. It is submitted that the guidelines for compassionate appointment are enumerated in Ministry of Personnel, Public Grievances and Pension (DOP & T) 0M No.14014/6/94-Estt (D) dated 9.10.1998. The deponent herein craves leave to refer and rely upon the same at the time of hearing of this petition. It is submitted that the guidelines for compassionate appointment are enumerated in Ministry of Personnel, Public Grievances and Pension (DOP & T) 0M No.14014/6/94-Estt (D) dated 9.10.1998. The deponent herein craves leave to refer and rely upon the same at the time of hearing of this petition. It is respectfully stated and submitted that when there is no vacancy intended for compassionate appointment, no appointment on compassionate ground can be made till further release of direct recruitment quota. It is submitted that issue of mere selection do not create any indefeasible right to the petitioner and the cancellation of selection is also within the competency of respondents. It is therefore submitted that on account of non-availability of vacancy, the petitioner has not been offered appointment on compassionate ground and therefore also the present petition is required to be dismissed with costs in the interest of justice. 6. I say and submit that the law on the subject is well settled by the decision of the Honble Apex Court in the case of Shankar Dash v. Union of India, as well as the decision of the Honble Central Administrative Tribunal, Jodhpur, in case of Ajay Kumar Mishra v. Union of India, as reported in All India Service Law Journal, Vol.57, 1995(3) page 577, wherein it was held that the candidate selected for appointment has no right for appointment and it is open to the State to fill up the post at a subsequent date or to resort to fresh selection and appointment on revised criteria. It is therefore submitted that the ratio of the above-referred cases are squarely covered in the facts of the present case also. It is submitted that thought the case of the petitioner was considered for appointment to the post of Group-D but there is no vacancy available on 5% of DR quota and when there is no vacancy, the petitioner is not entitled for any mandatory relief from the Honble Court so as to direct the respondents to appoint him on compassionate ground and therefore also there is no merit in the petition and is required to be dismissed with costs in the interest of justice. 7. I say and submit that in the present case the respondent has cancelled the selection process prior to appointment and the candidates who appeared for the written test or selected have no right for appointment. 7. I say and submit that in the present case the respondent has cancelled the selection process prior to appointment and the candidates who appeared for the written test or selected have no right for appointment. It is submitted that the Honble Supreme Court in the case of State of M.P. v. Raghuvir Singh Jadhav, as reported in (1994) 6 SCC 151 wherein the Honble Apex Court held that cancellation of selection process prior to appointment is not invalid if the same is not arbitrary and the candidate passing the exam does not acquire any vested right to be appointed. It is submitted that in the present case also the petitioner was not issued any appointment order, therefore the action of cancellation of selection by the respondent is well within the powers and hence the action is not arbitrary, illegal, unjust and therefore also there is no merit in the present petition and is required to be dismissed in limine with costs. 8. With reference to Para 2.2, 2.3, and 2.4 the contents, averments and/or allegations made therein are denied in to. It is submitted that the selection order dated 22.9.99 was issued to the petitioner for the post of Group D' , however, after the completion of recruitment formalities of medical test and police verification in February 2000, the proposal for appointment of the petitioner on compassionate ground was under consideration. It is submitted that the respondent has received instructions through staff channel that compassionate appointments have to be made within a year, that too, Within the ceiling of 5% vacancies allotted for the purpose. It is submitted that the aforesaid instructions are contained in Ministry of PPG & Pensions Department of Personnel & Training No.F 14014/23/99 Estt dated 03.12.1999. It is submitted that the petitioner's case was referred to the HQrs Office, however, the petitioner's case was turned down for want of vacancy and accordingly this decision was communicated to the petitioner vide Speaking Order dated 25.8.2003. 9. With reference to the contents of Para 2.5. the same are denied in to. It is submitted that the petition is not maintainable before this Honble Court because on constitution of Central Administrative Tribunal, the matter under Article 226 of the Constitution and relating to recruitment and service matters are coming under the jurisdiction of Tribunal. 9. With reference to the contents of Para 2.5. the same are denied in to. It is submitted that the petition is not maintainable before this Honble Court because on constitution of Central Administrative Tribunal, the matter under Article 226 of the Constitution and relating to recruitment and service matters are coming under the jurisdiction of Tribunal. It is submitted that the petitioner hails from Gujarat State, the matter should have been filed with CAT, Ahmedabad Bench. The deponent craves leave to refer and rely upon the Extracts of Section 18 & 28 of Administrative Tribunal Act, 1985 at the time of hearing of this petition. It is submitted that the respondent has not done anything illegal, arbitrary, discriminatory or unreasonable in violation of Articles 14 and 16 of the Constitution. It is submitted that the respondents have no legal right to provide job to the petitioner when there is no vacancy available under the 5% DR quota meant for compassionate appointment. In view of this fact also, there is no substance in the petition and deserves to be dismissed with costs in the interest of Justice. 10. With reference to the contents of Para 4 of the petition, the same are denied in to. It is respectfully stated and submitted that mother of the petitioner is getting a family pension of Rs.2,163/- p.m. and had also received approximately Rs. 2 lakhs as other benefits. It is therefore submitted that there is no injustice has been done in denying the compassionate appointment for want of vacancy as the family of the deceased cannot be said to be in indigent condition nor the petitioner is absolutely in the helpless condition and struggling to survive five members in the family. 11. With reference to the Para 5 of the petition, the deponent herein denies the contents thereof in to. It is submitted that at each stage the case of the petitioner was considered sympathetically and expeditiously. Further it is submitted that only dependents of the employee dying harness leaving his family in penury and without any means of livelihood can only be appointed on compassionate grounds. It is submitted that aforesaid principle was laid down by the Honble Supreme Court in case of Umesh Kumar Nagpal v. State of Haryana and Ors., as preported in (JT) 1994 (3) SC 525. It is submitted that aforesaid principle was laid down by the Honble Supreme Court in case of Umesh Kumar Nagpal v. State of Haryana and Ors., as preported in (JT) 1994 (3) SC 525. It is submitted that the petitioner has repeatedly submitted representations even though, the respondent informed the petitioner that the compassionate appointment cannot be extended in his case for want of vacancy. 12. With reference to paras 6 & 7 of the petition, the averments, contentions and/or allegations made therein are denied in total it is submitted that at the time of issue of appointment order there was no vacancy in Group-C and Group-D post as the 5% DR quota was already filled in. It is therefore submitted that as per the Government orders as well as decisions of the Honble Supreme Court, the case of the present petitioner was not considered as there is no provision in this Department to appoint the candidate on part time basis. 13. With reference to para 8 of the petition, the contents, averments and/or allegations made therein are denied in to. It is submitted that the petitioner was given a chance to appear in the test for the post of Clerk, however, the petitioner has failed in the test conducted for the purpose and found unsuitable for the post. It is further submitted that the petitioner was offered Group-D post, however, based on the instructions received from Staff Channels that the compassionate appointments have to be made within a year and that too within the ceiling of 5% of vacancies allocated for the purpose, the case of the petitioner was rejected. It is also submitted that though the respondent has issued selection order dated 22.10.99 and not appointment order as contended by the petitioner. 14. With reference to contents or Para 9 of the petition, the same are denied in to. It is most respectfully stated and submitted that there are more than 25 cases, all are denied for want of vacancy of which there are number of families, which are more destitute than the family of the widow of Smt. Samiben, who is having sufficient means by way terminal benefits. It is therefore submitted that hence there is no injustice is caused to the petitioner as the Policy of the Government is not give appointments in excess of 5% fixed for compassionate appointment. It is therefore submitted that hence there is no injustice is caused to the petitioner as the Policy of the Government is not give appointments in excess of 5% fixed for compassionate appointment. In view of this peculiar facts also, there is no merit in the petition and deserves to be dismissed with costs in the interest of justice. 15. With reference to Para 10 of the petition, the contentions, averments and/or allegations made therein are denied in to. It is submitted that the mother of the petitioner is already in receipt of sufficient amount of terminal benefits apart from family pension. It is submitted that the object of scheme for compassionate appointment to a dependent family members of a deceased Government servant dying in harness 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 help to get over the emergency. It is submitted that when there is no vacancy, the respondent is unable to provide the same and therefore the respondent has acted correctly and justly. It is further submitted the petition is hopelessly time barred which cannot be entertained. It is submitted that the order issued by the respondent is just and equitable order, which does not call for any interference by this Honble Court under Article 226 of the Constitution of India, especially when the jurisdiction lies before the Central Administrative Tribunal, and therefore also the petition is required to be dismissed with cost in the interest of justice and fairness of things. 17. 17. The deponent herein most humbly and respectfully states and submits that the petition is required to be dismissed on the ground that, firstly, the matter lies before the Central Administrative Tribunal, Ahmedabad, because the cases relating to Recruitment and Service matter under Article 226 of the Constitution are covered under the jurisdiction of the Tribunal vide Section 28 and 18 of the Administrative Tribunals Act, 1985; secondly, the petition has been filed after a lapse of 18 months of the date of issuance of Speaking Order in August 2003 and therefore the petition becomes time barred; thirdly, no temporary or regular appointment can be offered to the petitioner as the 5% DR quota meant for compassionate appointment has been exhausted, and fourthly no vacancy is likely to be released in the future as there is a ban on recruitment of Group D posts." 5. Mr. Desai, the learned counsel appearing for the respondent has placed reliance on the two decisions of the Supreme Court. (1) Hindustan Aeronautics Ltd. v. Smt. A. Radhika Thirumalai, JT 1996 (9) SC 197; and (2) Himachal Road Transport Corporation v. Shri Dinesh Kumar, JT 1996 (5) SC 319. 6. The ratio of the two decisions is that if there are no vacant posts available for the purpose of giving compassionate appointment, then directions should not be issued to appoint on permanent post. 7. I take notice of the fact that the father of the writ-applicant passed away in the year 1998. In the year 2001, it was made clear that as there was no vacancy, the department would not be in a position to offer any employment to the writ-applicant. Even after the last communication dated 8th September 2003, this writ-application was filed in the year 2005, i.e. almost after a period of 18 months. On the demise of the father, the mother of the writ-applicant started receiving Rs.2,163=00 per month towards the family pension, which must now have been revised to a particular amount. The mother also received the following retrial benefits : (1) Death-Cum-Retirement Gratuity Rs.1,12,497=00 (2) G.P.F. Rs. 39,550=00 (3) Group Insurance Rs. 39,106=00 (4) Some amount towards the Leave Encashment. 8. Without going into the controversy whether at the relevant point of time the respondent was justified in rejecting the claim of the writ-applicant for compassionate appointment. 9. The mother also received the following retrial benefits : (1) Death-Cum-Retirement Gratuity Rs.1,12,497=00 (2) G.P.F. Rs. 39,550=00 (3) Group Insurance Rs. 39,106=00 (4) Some amount towards the Leave Encashment. 8. Without going into the controversy whether at the relevant point of time the respondent was justified in rejecting the claim of the writ-applicant for compassionate appointment. 9. I am of the view, having regard to the facts narrated above, that no case is made out for issue of any writ to provide compassionate appointment. 10. I may quote with profit a decision of the Supreme Court in the case of MGB Gramin Bank v. Chakrawarti Singh, AIR 2013 SC 3365 . I may quote paragraphs 5 to 13 of the decision as under : "5. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its bread-earner. Mere death of a Government employee in harness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years. 6. In Umesh Kumar Nagpal v. State of Haryana & Ors., (1994) 4 SCC 138 , this Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court observed as under: The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. 6. In Umesh Kumar Nagpal v. State of Haryana & Ors., (1994) 4 SCC 138 , this Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court observed as under: The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased.&. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned. &. The only ground which can justify compassionate employment is the penurious condition of the deceased family. The consideration for such employment is not a vested right. The object being to enable the family to get over the financial crisis. (Emphasis added) 7. An ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment. Furthermore, an application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated. 8. The Courts and the Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments. 9. In A. Umarani v. Registrar, Co-operative Societies & Ors., AIR 2004 SC 4504 , while dealing with the issue, this Court held that even the Supreme Court should not exercise the extraordinary jurisdiction under Article 142 issuing a direction to give compassionate appointment in contravention of the provisions of the Scheme/Rules etc., as the provisions have to be complied with mandatorily and any appointment given or ordered to be given in violation of the scheme would be illegal. 10. The word vested is defined in Blacks Law Dictionary (6th Edition) at page 1563, as vested, Fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. 10. The word vested is defined in Blacks Law Dictionary (6th Edition) at page 1563, as vested, Fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are vested when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights. 11. In Websters Comprehensive Dictionary (International Edition) at page 1397, vested is defined as Law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest. (Vide: Bibi Sayeeda v. State of Bihar, AIR 1996 SC 516 ; and J.S. Yadav v. State of Uttar Pradesh, (2011) 6 SCC 570 Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/ scheme could be changed. Vide: Kuldip Singh v. Government, NCT Delhi AIR 2006 SC 2652 12. A scheme containing an in pari materia clause, as is involved in this case was considered by this Court in State Bank of India & Anr. v. Raj Kumar, (2010) 11 SCC 661 . Clause 14 of the said Scheme is verbatim to clause 14 of the scheme involved herein, which reads as under: "14. Date of effect of the scheme and disposal of pending applications: The Scheme will come into force with effect from the date it is approved by the Board of Directors. Applications pending under the Compassionate Appointment Scheme as on the date on which this new Scheme is approved by the Board will be dealt with in accordance with Scheme for payment of ex-gratia lump sum amount provided they fulfil all the terms and conditions of this scheme." 13. Applications pending under the Compassionate Appointment Scheme as on the date on which this new Scheme is approved by the Board will be dealt with in accordance with Scheme for payment of ex-gratia lump sum amount provided they fulfil all the terms and conditions of this scheme." 13. The Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment on compassionate ground may not be claimed as a matter of right nor an applicant becomes entitled automatically for appointment, rather it depends on various other circumstances i.e. eligibility and financial conditions of the family, etc., the application has to be considered in accordance with the scheme. In case the Scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the cause of action had arisen i.e. death of the incumbent on the post. In State Bank of India & Anr. (supra), this Court held that in such a situation, the case under the new Scheme has to be considered." 11. In view of the above, this writ-application fails and is hereby rejected. Rule discharged.