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2019 DIGILAW 140 (UTT)

Rakesh Kumar v. Union of India

2019-02-27

SHARAD KUMAR SHARMA

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JUDGMENT : Sharad Kumar Sharma, J. 1. The petitioner in the present writ petition has challenged the impugned order dated 30.10.2009, as passed by the respondent No. 2, whereby the claim of the petitioner for appointment on compassionate grounds has been rejected. The petitioner has further sought a relief that his claim for appointment on compassionate ground may be directed to be considered in accordance with the educational qualifications, which he possesses. 2. The brief facts leading to the filing of the present writ petition are that the father of the petitioner who was employed in the Military Engineering Service (M.E.S.) Roorkee as a Mate Carpenter had met with the sad demise on 09.11.2002. As a matter of fact, it is admitted that after the death of his father on 09.11.2002, the elder brother of the petitioner – Mange Ram had filed an application seeking compassionate appointment by moving an application on 21.02.2005; but later on he withdrew his candidature and thereafter petitioner has extended his candidature to be considered for appointment on compassionate grounds by filing of the application only on 20.09.2006. The application of the petitioner for being appointed on compassionate grounds was considered by respondent No. 2, along with various such other applications of other candidates which have been submitted for appointment on compassionate grounds. Ultimately, the application of the petitioner had been rejected by the impugned order dated 30.10.2009 on the ground that as per the conditions laid down under the Office Memo as prevailing with the respondent department the maximum percentage of permissible appointments which could be made on compassionate grounds i.e. 5%, thus 5% vacancies as against total cadre strength, are filled up and no vacancies are now available to consider the candidature of the petitioner. Though despite of rejection of the candidature of the petitioner, he has still pursued the matter by filing representations to persuade the respondents to consider his candidature but nothing fruitful have been yielded, hence he filed the writ petition on 23.10.2010 for the following reliefs:- “It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to: I. Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 30.10.2009 (Annexure-9) passed by respondents. II. II. Issue a writ order or direction in the nature of mandamus commanding the respondents to give appointment the petitioner under on a suitable post (as per his educational qualification) under dying in harness rules. III. Issue any other order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. IV. Award cost of the petition.” 3. Before proceedings further, it would be relevant to mention that the appointments on compassionate grounds in the M.E.S. department are governed by the Office Memo as issued from time to time by respondents as made applicable to the said department, particularly, the Office Memo No. 14014/6 Estt. (D) dated 09.10.1999 and Office Memo No. 14014/23/29-Estt. (D) dated 03.12.1999 which provided the parameters for considering the representations/applications for appointment on compassionate ground becomes one of the relevant considerations for considering such claim for compassionate appointment. 4. The aforesaid Office Memos had been subsequently amended/modified by yet another Office Memo No. 14014/19/2003-Estt (D) by the Government of India, Ministry of Personal Public Grievances and Pension dated 05.05.2003 (Annexure CA-1 to the writ petition) wherein it has prescribed the upper limit of the period upto which an application for the claim on compassionate appointment could be made and considered. It has also dealt with the maximum percentage of posts which would be made available for direct recruitment. Clause 2 and 3 of the Office Memorandum dated 05.05.2003 read as under :- “2. It has therefore been decided that if compassionate appointment is genuine and deserving cases as per the guide lines contained in the above OMs is not possible in the first year due to non-availability of regular vacancy the prescribed committee may review such cases to evaluate the financial conditions of the family to arrive at decision as to whether a particular case warrants extension by one more year for consideration for compassionate appointment by the committee subject to the availability of a clear vacancy within the prescribed 5% quota, if on scrutiny by the committee a case is considered to be deserving the name of such a person can be continued for consideration for more year. 3. The maximum time a person name will be three years, subject to the condition that prescribed committee had reviewed and clarified the penurious conditions of the applicant at the end of the first and the second year. 3. The maximum time a person name will be three years, subject to the condition that prescribed committee had reviewed and clarified the penurious conditions of the applicant at the end of the first and the second year. After three years if compassionate appointment is not possible to be offered to the applicant his case will be finally closed and will not be considered again.” 5. On an overall scrutiny of the amended/modified Office Memo dated 05.05.2003, it had provided that a candidate applying for appointment on compassionate grounds has to move an application within a year from the date of death for e.g. in the instant case maximum upto 08.11.2003, but the same would be considered for appointment only subject to the availability of the vacancies within the prescribed limit of 5 percent quota of the total vacancies. It had further provided that for the purposes of considering the application for appointment on compassionate ground apart from above two restrictions of the period for applying and the percentages of vacancy available, it is also the status and the viability of the family to sustain itself is also to be taken into consideration that is why by clause 3 of Notification dated 05.05.2003 –“Penurious conditions” of the applicant had also to be considered. Though the maximum time which has been fixed by clause (3) provides that an applicant is expected to apply within one year but subject to a rider that the said application could be entertained and considered for a maximum period of 3 years from the date of death however, under the Office Memo dated 05.05.2003 as presented before this Court, none of the clauses contemplate or give the authority to the respondents to extend the period for applying or considering for appointment on compassionate grounds. Meaning thereby, under no circumstances, the period for applying on compassionate grounds could be extended beyond the period of 3 years from the date of death and also that the Committee thus constituted to consider the application of the petitioner vide its impugned order dated 30.10.2009, had been entrusted with the responsibility for making an appointment on compassionate grounds, has also to consider the pecuniary conditions of the family for granting a compassionate appointment. 6. 6. The candidature of the petitioner was considered by respondent No. 2 and while considering his candidature, the respondent No. 2, had passed a detailed order on 30.10.2009, whereby the candidature of the petitioner was rejected. On scrutiny of the impugned order under challenge, the respondent No. 2 has recorded a finding in para 4 of the impugned order which had dealt with the statistics available with the respondents pertaining to the financial viability of the family, its dependency and the accrual of benefit which has already been provided to the petitioner’s family. However, the learned counsel for the petitioner emphasizes upon the finding which has been recorded in sub clauses (j) (k) of Clause 4 which provides that as against the total applications available for consideration for compassionate appointment i.e. 97, out of which 82 candidates who had applied were after more than 3 years. “(j) No of applicants – 97 (k) Your number in merit amongst total applicants – 82 (case more than 03 years old)” 7. Hence, as a matter of fact, the argument as extended by the learned counsel for the petitioner is that the upper limit of time period for applying as contemplated under the Office Memo dated 05.05.2003 has in fact not been principally made applicable for considering the candidature of total 97 applicants who have applied for appointment on compassionate ground. This argument is not tenable because the figures provided in the impugned order itself shows that out of 97 applicants only 15 candidates were found to have applied within the prescribed, and 82 applications stood rejected by applying the aforesaid principles. Be that as it may but the Appointing Authority, while considering the candidature of the petitioner has recorded the following findings in para 6 of the impugned order under challenge before this Court. The said para is quoted hereunder :- “6. Be that as it may but the Appointing Authority, while considering the candidature of the petitioner has recorded the following findings in para 6 of the impugned order under challenge before this Court. The said para is quoted hereunder :- “6. Therefore, after due circumspection and consideration in the light of the enclosed guidelines of DoP&T and various judgments of the Hon’ble Supreme Court and that the appointment on compassionate grounds is not a matter of right and after a balanced and objective assessment of the totality of the circumstances of the case including the decision of Board of Officers and screening committee at Command Headquarter, the competent authority has rejected the employment assistance to Shri Rakesh Kumar S/o (Late) Shri Illam Singh, Ex Mate (Cap) on compassionate grounds, (due to non-availability of sufficient vacancies within 5% quota within a period of three years after the death). Now your case is finally closed and will not be considered again.” 8. As per the findings recorded, the reason for denial of the candidature of the petitioner for appointment on compassionate grounds was that the total number of seats/vacancies which were required to be filled in on compassionate grounds is already over and 5% quota stands exhausted. Besides this, the petitioner himself is shown to have applied for first time on 20.09.2006, that means after 3 years 10 months approximately. 9. In view of the aforesaid reasons, the candidature of the petitioner has been rightly rejected. The status of the vacancy obviously has to be considered as per the vacancies available on the date on which the candidature is considered and if the vacancies crosses the upper permissible limit of 5% vacancies then obviously no latitude can be extended to grant a compassionate appointment because it has been held out in catena of judgements of various Courts including the Hon’ble Apex Court that the consideration of appointment on compassionate grounds cannot be claimed as matter of right, but rather it is a compassion which has been expressed to the family which has been deprived of the breadwinner of the said family. This aspect of delayed applying too would disentitle the petitioner for compassionate appointment. 10. This aspect of delayed applying too would disentitle the petitioner for compassionate appointment. 10. Considering the aforesaid fact and also the fact which has now germinated with the passage of time that the fact remains that the death of the father of the petitioner has chanced as back as on 09.11.2002 and now sufficient period has lapsed, the very purpose of the compassionate appointment to meet the emergent need of the family stand exhausted, because sufficient time has lapsed and the family/dependents have been able to survives themselves, hence, this Court does not find any anomaly in the impugned order of rejection, consequently, the writ petition fails and is accordingly dismissed. 11. However, there would be no order as to costs.