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2022 DIGILAW 229 (JK)

Sunny Khajuria v. Union of India

2022-05-10

SINDHU SHARMA

body2022
JUDGMENT : 1. The petitioner has assailed the order dated 14.8.2017 passed by the respondents in compliance to an order dated 17.04.2017 passed by this court in SWP No.2656 of 2015 vide which the respondents have not granted compassionate appointment to the petitioner due to his lesser relative merit position. 2. Briefly stated facts which arise in this petition are that, the father of the petitioner late Sh. Som Dutt was working as L/Hand(NT) (HAV) with the respondent-department, died in harness on 03.12.1996. At the time of his death, he was survived by his widow, two sons and a daughter. The mother of the petitioner Smt. Nirmala Devi immediately thereafter approached the respondents for seeking appointment on compassionate grounds. The respondents, denied the same to the petitioner's mother vide their communication dated 4th July,2000 on the ground, that since GREF is an integral part of armed forces, as such, there is no such provision for employing the woman in the said department. The respondents, however, informed her that as and when her elder son attains the age of majority, they would again consider his case for appointment on compassionate ground. 3. The petitioner being the eldest son of deceased Shri Som Dutt, after attaining the age of majority moved an application seeking compassionate appointment, but the same remained pending with the respondents for almost 09 years. As the respondents were not considering his case, the petitioner approached this court seeking consideration of his case for appointment on compassionate grounds in terms of rules and policy in vogue by filing a writ petition bearing SWP No. 2656/2015 titled Sunny Khajuria vs. Union of India and others. This writ petition was disposed of by this court vide order dated 17.04.2017 with the following directions; "10. In view of the ratio of the judgments (supra) and in the facts and circumstances of the case, this petition is disposed of with a direction to the respondents to consider for appointment of the petitioner on compassionate ground having regard to the recommendation made by the Board of Officers, as and when vacancy is available and of course as per rule admissible I the field". 4. The respondents in compliance to the aforesaid direction of this court, have passed the impugned order dated 14.08.2017 refusing compassionate appointment to the petitioner due to his lesser relative merit points. 4. The respondents in compliance to the aforesaid direction of this court, have passed the impugned order dated 14.08.2017 refusing compassionate appointment to the petitioner due to his lesser relative merit points. He was, however, informed that as and when his name comes up in the merit list, a letter for appointment on compassionate grounds would be issued to him. The operative portion of the said order reads as under; "Whereas the issue of appointment will depend on your inter-see merit; position in the consolidated merit list. The call letter for appointment will be issued as and when your name comes up in the merit list subject to availability of vacancies meant for the purpose. All present 714 candidates already exist in the recommended merit list and awaiting consideration for compassionate appointment. No preferential offer of appointment can be made to you by superseding other application higher merit in the waiting list. Where as it is also pertinent to intimate you that the year 2013 29 vacancies have been released/available and based on relative merit points RMP as per merit list of that year candidate who have minimum relative merit points RMP 74 has been considered for appointment on compassionate grounds similarly for the year 2014 13 vacancies were released available and based on relative ment poins RMP as per merit list of that year candidate who have minimum 80 relative merit points RMP has been considered for appointment on compassionate grounds your name was also considered for the above vacancies and did not came up in the merit list of appointment on compassionate grounds as you have 57 relative merit points RMP only whereas candidate with minimum RMP 74 have been considered for compassionate appointment grounds on release of said vacancies. Whereas this department is bound to abide by the rules and regulations policies and procedure issued by the central govt. from time to time on compassionate appointment scheme and action has been taken in correct perspective and deserving manner without any injustice to the petitioner. Now therefore, you are hereby again intimated that whenever your name comes upon merit list within the stipulated period of time a call letter be issued to you for appointment of compassionate grounds". 5. The petitioner is aggrieved of order dated 14.08.2017 on the ground that the same is arbitrary and deserves to be set aside. Now therefore, you are hereby again intimated that whenever your name comes upon merit list within the stipulated period of time a call letter be issued to you for appointment of compassionate grounds". 5. The petitioner is aggrieved of order dated 14.08.2017 on the ground that the same is arbitrary and deserves to be set aside. It is submitted that the respondents, despite extending assurance to his mother and him have failed to appoint him on compassionate basis. The respondents have failed to into consideration the condition of his family which has deteriorated day by day and the fact that they requires immediate sustenance. It is submitted that the respondents by referring to the inter-se merit and the vacancies position available with them are only attempting to linger on the case of the petitioner for compassionate appointment. It is also contended that brother and sister of the petitioner are still students and it is not possible for the petitioner to fulfill their daily requirements and make both ends meet, as such, was required to be appointed on compassionate grounds. The order impugned has been passed without inquiring about the condition of the petitioner's family, as such, same deserves to be set aside. The respondents, did not appoint the petitioner's mother and thereafter assured her that they will appoint the petitioner on compassionate ground to ameliorate their hardship, but till date they have not appointed the petitioner. The petitioner, thus, seeks for quashing of the impugned order dated 14.08.2017 along with a direction to the respondents to appoint the petitioner on compassionate ground. 6. In their objections, the respondents submit that the case of the petitioner has been considered by the respondents in accordance with the policy which is prevalent. The cases for compassionate appointment, it is submitted that these are being considered strictly in accordance with the merit subject to availability of the vacancies meant for this purpose, in accordance with the instructions issued by the Government of India, in terms of DOP&T from time to time. The respondents' contention is that only up to maximum of 5% of vacancies in direct recruitment of Group C posts are available in a year for compassionate appointment. Since only limited vacancies are available, therefore, the only deserving cases are considered as per their merit and recommended for issuance of call letters based on the vacancies available in accordance with the policy. 7. Since only limited vacancies are available, therefore, the only deserving cases are considered as per their merit and recommended for issuance of call letters based on the vacancies available in accordance with the policy. 7. It is stated that the competent authority had decided to constitute a Special Board of Officers to reconsider all pending and earlier non recommended cases of belated request. The respondents submits that after attaining the age of majority by the petitioner his name was considered by the Board of Officers in the Month of December, 2006 and the case of the petitioner was also considered along with others. The Board of Officers has assessed and recommended the case of the petitioner for compassionate appointment, however, his Relative Merit Points have been assessed at 57. This fact has been communicated to the petitioner's mother vide respondents letter dated 05 July, 2013. The petitioner, however, approached this court for grant of compassionate appointment and vide order dated 17.04.2017 passed in SWP No.2562/2015, the respondents were directed to consider the case of the petitioner for compassionate appointment. The respondents, accordingly, considered the case of the petitioner for compassionate appointment. The relative merit points of last candidates who have been issued call letter for vacancies of year 2013, 2014, 2015 and 2016 were 73, 78, 80 and 78, whereas petitioner's relative merit points are 57 only, therefore, due to lower merit i.e. relative merit points, the petitioner could not have been considered for appointment. 8. In the impugned order dated 14.08.2017, the respondent have reflected that since the personnel of Organization are deployed in far flung areas of high altitude which is snow bound and very harsh and also severe climatic conditions the death in the department is very high, but the vacancies available for compassionate appointment is comparatively very less, that is, around 5% to the group C posts, therefore, in view of the fact that only deserving cases are considered as per the merit based on the vacancies available for the purpose in accordance with the merit list. At present it is stated that 714 candidates already exist in the recommended merit list awaiting consideration for compassionate appointment and no preferential offer of appointment could have been made to the petitioner as other applicants who were higher in the merit. At present it is stated that 714 candidates already exist in the recommended merit list awaiting consideration for compassionate appointment and no preferential offer of appointment could have been made to the petitioner as other applicants who were higher in the merit. The merit of the candidates is considered based on 100 points, their family pension, terminal benefits, monthly income of the earning members, number of minor children and left out of service, thus, after comparatively balancing the assessment of the candidates, their names are recommended. 9. By the impugned order the candidature of the petitioner has not been rejected, but it only states that as per the assessment of the petitioner's relative merit point he could not be given an appointment. From the said order, it transpires that respondents have assured that as and when his case comes up a call letter would be issued for compassionate appointment. 10. The petitioner's mother is also receiving a family pension of Rs.10,810/- per month (Rs.9,000+810 (9% DA) + medical allowance Rs.1000/-) as per 7th CPC, therefore, the family is able to maintain themselves. Otherwise, also, it is settled proposition of law that compassionate appointment cannot be claimed as a matter of right. It is one of the conditions of service which occurs on account of death of an employee and it can not be treated as a vested right. The object of providing compassionate appointment is only to provide immediate succor to the family of the deceased to tide over undue hardship occurred on the death of the earning member. The case of the petitioner was considered as per the Scheme of compassionate appointment under the Central Government-Revised consolidated instructions of the Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training) issued under Office Memorandum dated October 9, 1998. The respondents were justified in taking into account all the parameters as per the prevalent scheme to compute the merit points of the petitioner along with all other eligible candidates. The respondents, while considering and evaluating the claim of the petitioner has to consider the points as awarded on diverse heads and provide appointment to the most deserving person. 11. The Hon'ble Supreme Court in AIR 2022 SC 402 , The Secretary to Govt. Department of Education (Primary) & Ors. Vs. The respondents, while considering and evaluating the claim of the petitioner has to consider the points as awarded on diverse heads and provide appointment to the most deserving person. 11. The Hon'ble Supreme Court in AIR 2022 SC 402 , The Secretary to Govt. Department of Education (Primary) & Ors. Vs. Bheemesh held in para-18 as under; "If compassionate appointment is one of the conditions of service and is made automatic upon the death of an employee in harness without any kind of scrutiny whatsoever, the same would be treated as a vested right in law. But it is not so. Appointment on compassionate grounds is not automatic, but subject to strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family. Therefore, no one can claim to have a vested right for appointment on compassionate grounds". 12. In Union of India & Ors. vs. Amrita Sinha, Civil Appeal Nos. 7640-7641 arising out of S.L.P (C) Nos.143-1414 of 2019 decided on 11.12.2021 has held in para-12 of the judgment as under; "12. Compassionate appointment is not a matter of right, but is to enable the family to tide over an immediate crisis which may result from the death of the employee. If the policy of the government envisages that the family pension would be paid for a ten years after which it would have to be modified, it cannot be said that by taking into account the present pensionary payment, the authorities have considered an extraneous circumstance. The same criterion is applied even handedly to all applicants seeking compassionate appointment". 13. Therefore, in view of the aforesaid settled proposition of law, there is no reason to in interfere in the impugned order. 14. The compassionate appointment is only to provide immediate assistance to the family to tide over the circumstances. The death of the petitioner's father occurred in 1996 and almost two and half decades have passed since his death and the family has been able to tide over the immediate difficulties resulting from the death of the employee. 14. The compassionate appointment is only to provide immediate assistance to the family to tide over the circumstances. The death of the petitioner's father occurred in 1996 and almost two and half decades have passed since his death and the family has been able to tide over the immediate difficulties resulting from the death of the employee. As the requirement of the petitioner was considered under the diverse heads and thereafter merit points were granted, as such, the respondents cannot be directed to provide compassionate appointment to the petitioner ignoring the claims of other candidates whose requirement is perhaps more than the petitioner. 15. For the foregoing discussion, there is no merit in this petition and the same is, accordingly, dismissed.