Gulrez Khan vs Union of India and Others

Sanjay Yadav, J.—This order shall govern the final disposal of W.P. No. 13284/2008 -Mushtak Khan v. Union of India and others, W.P. No. 13285/ 2008 - Pranav Bhattacharya v. Union of India and others, W.P. No. 13286/ 2008 - Dinesh Kumar vs. Union of India, W.P. No. 13287/2008 - Gopal Krishna Mehta v. Union of India and others, W.P. No. 13288/2008 - Ku. Shamshad Khan v. Union of India and others, W.P. No. 13289/2008 - Buli v. Union of India and others and W.P. No. 13290/2008 - Smt. Raju Bai v. Union of India and others, which were heard analogously.

Having been brought on the list of eligible candidates for appointment on compassionate ground in lieu of death of sole bread earner, on the basis of an existing policy/scheme for compassionate appointment, whether the petitioners on the basis of subsequent circulars, which earmarked the life of retention of such person on the waiting list, can be deprived from being appointed on compassionate ground in the event of vacancies arising in subsequent year, is the moot issue which crops up for consideration in present bunch of petitions preferred against the order dated 10.9.07, passed by the Central Administrative Tribunal, wherein, claim of respective petitioners have been rejected.

Undisputed facts carved out from the impugned order are that in W.P. No. 13288/2008 (O.A. No.686/07) Anwar Khan, Fork Lift Helper, Bank Note Press, Dewas died in harness on 24.5.02, leaving behind four children. The petitioner applied on 6.8.02 seeking appointment on compassionate ground. The same was turned down vide communication dated 6.8.07.

In W.P. No. 13290/2008 (O.A. No.691/07) Jitulal Haglal, labourer died on 11th January, 1997, leaving behind widow and four children. An application for compassionate appointment dated 20.3.99, resulted in recommendation by the committee convened on 1.6.99 and on the basis whereof, her name was brought on list of eligibles.

In W.P. No. 13284/2008 (O.A. No.692/07) Subhan Khan, Assistant Diesel Mechanic died in harness on 1.8.98 leaving behind wife and two children. His son applied for appointment on compassionate ground on 8.10.99, which was rejected vide communication dated 6.8.07.

In W.P. No. 13287/2008 (O.A. No.694/07) Hari Narayan Mehta, Trailer, died in harness on 19.4.97, leaving behind his wife and three children, an application filed by his son for appointment on compassionate ground on 5.8.98, was rejected on 6.8.07.

In W.P. No. 13283/2008 (O.A. No.695/07) Mohammed Shariff Khan, Junior Machine Assistant died on 13.5.97, leaving behind his wife and son. His son moved an application on 18.11.98 and the same was rejected on 6.8.07.

In W.P. No. 13285/2008 (O.A. No.697/07) Amulya Kumar Bhattacharyajee, Office Peon died on 13.4.97 leaving behind his wife and two children. An application by his son filed on 17.4.97 for compassionate appointment was rejected on 6.8.07.

In W.P. No. 13286/2008 (O.A. No.696/07) Ram Dev Ram, Junior Inspector died on 30.5.1997 leaving behind his wife and three children. Petitioner being his son applied for compassionate appointment 11.6.1997 which was rejected on 6.8.2007.

In W.P.No. 13289/2008 (O.A. No. 795/07 Hari Narayan, A.C. Operator died on 12.5.02, leaving behind his wife and two children. An application filed by his daughter seeking appointment on compassionate ground on 8.8.02, was rejected on 6.8.07.

As apparent it is vide communication dated 6.8.07 that respective petitioners were informed that they cannot be given the appointment because of expiry of three years, a period fixed as per Office Memorandum No. 14014/ 19/2002-Estt.(D) Government of India, Ministry of Personnel, Public Grievances and Pension Department of Personnel and Training dated 5.5.03.

It is also not in dispute that except the petitioners in W.P. No. 13288/ 2008 and W.P.No. 13289/2008 i.e. Ku. Shamshad Khan and Buli daughter of late Hari Narayan, case of all the petitioners was considered for compassionate appointment in lieu of the death of the sole bread earner and their names were brought on the list of eligibles for appointment on compassionate ground. This was in accordance with the then existing instruction pertaining to scheme for compassionate appointment circulated vide G.I. Department of Personnel and Training, Office Memorandum No. 14014/6/ 91 -Estt.(D) dated 9.10.98. It is also not in dispute that name of the petitioners continued in the list till 6.8.07, when their claim was rejected on the ground of expiry of three years being in the list.

Pertinent it would be to note at this juncture that, subsequent to the instructions dated 9.10.98, Government of India issued few more instructions one on 3.12.99 and the another one on 5.5.03.

Vide instructions issued on 3.12.99 a concept of time limit for the compassionate appointment was introduced for the first time. Vide this circular it was decided that time limit for making appointment on compassionate ground under direct recruitment quota in any group C or D posts prescribed in paragraph 7(b) of the instructions dated 9.10.98 will be one year. Whereas vide Office Memorandum dated 5.5.03 the time limit for making compassionate appointment was extended to three years from that of one year.

The petitioners who were adjudged eligible and brought on the list for appointment on compassionate ground were considered in the light of these subsequent Office Memorandum and were found ineligible for appointment on compassionate ground because of three years'' limitation. In case of petitioners in W.P.No. 13288/2008 and W.P.No.13289/2008, applications were respectively filed on 6.8.02 and 8.8.02, which met with the rejections apparently on the ground that three years have expired from the date of death of respective bread earners, therefore, the claim cannot be considered for appointment on compassionate ground.

It was contended by the petitioners before the Tribunal that between the period from 1997 to 2003, eighty three vacancies have occurred but the respondents deliberately did not consider the case for appointment on compassionate ground. It was stated that seven posts on the said count are still lying vacant and the applications by the petitioners for appointment on compassionate ground has been rejected with a previous notice. It was stated by the petitioners before the Tribunal that, various appointments on compassionate ground were made from January, 1997 onwards and on 9.12.03 five appointments were made despite of the bar created vide Office Memorandum dated 5.5.03.

The petitioner contended before this Court that, having been brought in the list of eligibles and having acquired the right of consideration for appointment, the respondents were not justified in depriving the petitioners by taking recourse of subsequent Office Memorandum which were made effective from retrospective date. It is contended that, had the petitioners been not found eligible for appointment on compassionate ground on merit, the respondents were well justified in rejecting the claim. It is urged that, in the case at hand since the petitioners were eligible and the appointment on compassionate ground was subject to future vacancies, they cannot be deprived of the consideration on the basis of subsequent circulars issued by the respondents. It is also urged that, the petitioners have been discriminated as much as similarly situated persons were given appointment on compassionate ground by order issued on 9.12.03, whereas, the petitioners were kept waiting in the list and in 2007 their claim has been rejected. It is urged that respondents were not justified in applying Office Memorandum dated 5.5.03, differently in case of the petitioner and those who were extended the benefit of appointment after the issuance of said Office Memorandum.

The respondents on their turn while reiterating the contentions raised before the Tribunal, has to submit that in the year 1999, applications for compassionate appointment were scrutinized by the committee constituted for said purpose(except in the case of Ku.Shamshad Khan and Buli daughter of Harinarayan). It is contended that committee which held its meeting, on 1.6.99 considered 19 cases including the petitioner Smt. Rajju Bai (W.P. No. 13290/2008). It is urged that out of 19, in 17 cases appointment orders have been issued as per availability of vacancies. In respect of Smt. Rajju Bai, it is contended that though, she was found eligible but could not be appointed due to non availability of vacancy/post and also in view of the fact that maximum period of three years as prescribed in Office Memorandum dated 5.5.03 has expired. The respondent further, submit that, further scrutiny was held in the year 2007 i.e. on 17.5.07 when 117 applications were considered. After scrutiny the concerning committee recorded that in cases more than three years old based on Office Memorandum dated 5.5.03, their cases cannot be recommended and accordingly they were informed about the decision vide communication dated 6.8.07. The respondents reiterates their stand that appointment on compassionate ground being not a vested right, no relief can be extended to the petitioner who have survived for such long years. It is also urged that since subsequent Office Memorandum limits the life of waiting list no relief can be granted to the petitioners.

In respect of appointments made on 9.12.03, learned counsel for the respondents submit that all the five persons who were given appointment were placed higher in the list and there were vacancies available. It is however admitted that some mistake has been committed by the respondents in considering their claim after 5.5.03. It is further urged that a wrong committed by the respondents cannot be allowed to perpetuate. The respondents therefore, claim for dismissal of petitions.

The Tribunal while dwelling upon submissions put forth by respective counsels dismissed the petitions filed by respective petitioners holding that:

21 - Two fold question which arise for consideration are (i) what is the legal right of submissions to seek compassionate appointments, (ii) whether the aforesaid Department of Personnel and Training, Office Memorandum dated 5.5.03 is applicable ?

22.- On examination of facts as noted herein above and on thoughtful consideration of all aspects of the matter I am of the considered opinion that so far as the first issue is noticed herein above is concerned, the same is no more res integra. The settled law is that High Court/Tribunal cannot give direction for appointment of a person on compassionate ground but can merely direct consideration of the claim for such an appointment. Compassionate appointment cannot be granted after lapse of a reasonable time and it is not a vested tight which can be exercised at any time in future. Only dependants of an employee dying in harness leaving his family members in penury can be appointed on compassionate ground and that too if the vacancy is available for that purpose.

Considered the rival submissions.

So far as the principle of law qua compassionate appointment is concerned it is trite that, it is not a vested legal right and is only a benefit granted in certain circumstances de hors normal Rule of appointment. Full Bench of this Court in Bank of Maharashtra and Another Vs. Manoj Kumar Deharia and Another, after taking into consideration catena of cases, observed in paragraph 33-

33.- In view of the foregoing discussion, we proceed to record our conclusions as follows:

The grant of compassionate appointment is not a vested legal right. It is only a benefit granted in certain circumstances de hors the normal rule of appointment and when the employer has a right to evolve an appropriate policy after considering various factors for granting such a benefit, the considerations have to be made in accordance with the policy that is prevailing at that point of time.

When it is held that compassionate appointment is not a vested right and when grant of such appointment is governed by the rules and policies prevailing in an establishment, then consideration as per the rules existing is required to be made and consideration as per the rules existing is required to be made and consideration on the basis of a policy, which is given up by the employer and which has no application at that point of time cannot be insisted upon.

Having regard to the exceptional nature of this appointment and taking note of the fact that it is granted under a special scheme carved out de hors the normal mode of recruitment, the same has to be governed as per the policies or provisions governing such appointment prevalent at a particular point of time when consideration is to be made, and not on the basis of a policy which was in vogue and has been given up by the employer due to changed circumstances.

As compassionate appointment is granted by carving out a special scheme contrary to the normal mode of recruitment and when the employer or the government is at liberty to evolve a scheme for granting such appointment has to be made in accordance with the scheme or policy that is in existence.

The decision rendered in T. Swamy Dass (supra) and Heeralal Baria (supra) do not lay down the correct law and are hereby overruled.

Any right flowing from a settlement between the employer and employees'' union or association has to be in a different compartment.

It would be the obligation of the employer to deal with the application with immediately and promptitude so that the grievance of a family in distress gets a fair treatment in accordance with law.

Thus, there cannot be any cavil regarding the proposition that appointment on compassionate ground is not a vested legal right.

Question however is, as in the given case, whether when in pursuance to an Office Memorandum persons are found eligible for being appointed on compassionate ground though subject to future vacancies, can be deprived of such consideration on the anvil of subsequent office memorandum which limits the life on panel.

At this juncture we may refer to the relevant clauses of respective Office Memorandum issued from time to time.

Clause 7 of the Office Memorandum dated 9.10.98 provides for determination/availability of vacancies. It stipulates:

7.- Determination/Availability of Vacancies

(a) Appointment on compassionate grounds should be made only on regular basis and that too only, if regular vacancies meant for that purpose are available.

(b) Compassionate appointments can be made up to a maximum of 5% of vacancies falling under direct recruitment quota in any Group ''C or ''D'' post. The Appointing Authority may hold back up to 5% of vacancies in the aforesaid categories to be filled by direct recruitment through Staff Selection Commission or otherwise, so as to fill such vacancies by appointment on compassionate grounds. A person selected for appointment on compassionate ground should adjusted in the recruitment roster against the appropriate category, viz, ST/SC/OBC/General depending upon the category to which he belongs. For example if, i.e., belongs to SC category he will be adjusted against the SC reservation, if he is ST/OBC he will be adjusted against ST/OBC. And, if he belongs to general category he will be adjusted against the vacancy meant for general category.

(c) While the ceiling of 5% for making compassionate appointment against regular vacancies should not be circumvented by making appointment of dependent family member of Government Servant on casual/daily wage/ adhoc/contract basis against regular vacancies, there is no bar to considering him for such appointment, if he is eligible as per the normal rules/ orders governing such appointments.

(d) The ceiling of 5% of direct recruitment vacancies for making compassionate appointment should not be exceeded by utilizing any other vacancy e.g., sports quota vacancy.

(e) Employment under the scheme is not confined to the Ministry/ Department/Office in which deceased medically retired Government Servant had been working. Such an appointment can be given any where under the Government of India depending upon availability of a suitable vacancy meant for the purpose of compassionate appointment.

(f) If sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment it is open to the administrative Ministry / Department /Office to take up the matter with other Ministries/Department/ Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list, in any particular office to accommodate the persons in the waiting list for compassionate appointment it is open to the administrative Ministry / Department /Office to take up the matter with other Ministries/Department/Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list.

Apparent it is from the aforesaid Clause that no life of the panel is stipulated therein. The object of the provision however is to extend appointment to such persons who are found eligible and are brought on list.

Subsequent thereafter, an element of time limit was brought in vide Office Memorandum dated 3.12.99, which was in the following terms-

The undersigned is directed to refer to the Department of Personnel and Training Officer memorandum No. 14014/6/94. Estt.(D) dated October 9, 1998 on the above subject and to say that the question of prescribing a time-limit for making appointment on compassionate grounds has received due consideration taking into account the ceiling of 5% of vacancies falling under direct recruitment quota in any Group ''C or ''D'' post prescribed in this regard in paragraph 7(b) ibid and the ruling of the Supreme Court that appointment on compassionate grounds can be made only if vacancies are available for the purpose mentioned in paragraph 17(d) ibid. Accordingly, it has been decided that the Committee prescribed in paragraph 12 ibid for considering a request for appointment on compassionate grounds should take into account the position regarding availability of vacancy for such appointment and it should recommend appointment on compassionate grounds only in a really deserving case and only if vacancy meant for appointment on compassionate grounds will be available within a year, that too within the ceiling of 5% mentioned above. This would ensure grant of compassionate appointment within a year. In respect of other really deserving cases the Committee should only recommend taking up the matter with other Ministries/Departments/Offices of the Government of India to consider those cases for appointment there as provided in paragraph 7 (f) ibid.

The instructions contained in the Office Memorandum dated October 9, 1998 stand modified to the extent mentioned above.

The above decision may be brought to the notice of all concerned for information, guidance and necessary action.

Thereafter vide memorandum dated 5.5.03 the time limit for making compassionate appointment which was curtailed to one year was extended to three years. The reasons for increase can be found in paragraph 2 of the said memorandum i.e. "If compassionate appointment to the genuine and deserving cases, as per the-guidelines contained in the above Office Memorandum''s is not possible in the first year due to non availability of regular vacancies, the prescribed committee may review such cases to evaluate the financial conditions of the family to arrive at a decision as to whether a particular case warrants extension by one more year, for consideration of compassionate appointment by the committee, subject to availability of a clear vacancy, even 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 one more year."

In the case at hand, the rejection is not on the basis of evaluation of the financial condition of the families of respective petitioner but is on the basis that three years have expired.

Whether the respondents could have done the same and whether a right which was conferred on the respective petitioners on the basis of existing Office Memorandum could be taken away on the basis of subsequent Office Memorandum when admittedly subsequent Office Memorandum is not effective from a retrospective date. In other words a right having accrued in favour of the petitioner for consideration whether can be taken away on the basis of subsequent instructions.

Trite it is that office memorandum which incorporates guidelines for appointment on compassionate grounds are not effective from a retrospective date but the same principle cannot be extended to circular which are merely guidelines.

In Chairman, Railway Board and others Vs. C.R. Rangadhamaiah and others, it was observed that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date, a benefit which has been granted or availed of e.g. promotion or pay scale, can be assailed violative of Articles Hand 16 of the Constitution to the extent it operates retrospectively. (see paragraph 20)

It was opined in paragraph 24 in Chairman Railway Board (supra) that "in many of these decisions the expression ''vested rights'' or ''accrued rights'' have been used while striking down the impugned provision which have been given retrospective operation so as to have an adverse effect in the matter of promotion, substantive appointment etc., of the employees. The said expression have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from anterior date and thereby, taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Article 14 and 16 of the Constitution."

In the case at hand, we are concerned with such persons who in pursuance to an existing policy applies for appointment on compassionate ground, were found eligible for such appointment, but for want of vacancies, they were kept on waiting list. The consideration as to eligibility for appointment having been undergone, it was only the appointment which was to be considered but for want of vacancies as the same is being calculated on the basis of 5% of the direct recruitment quota.

Admittedly, a right is created for substantive appointment though on compassionate ground. The stage of consideration being over the incumbents wait for vacancies to accrue. However, subsequently a time limit is created by virtue of another Office Memorandum and has been made effective to deprive such persons who were found eligible for appointment on compassionate ground. In our considered opinion in view of the law as laid down in Chairman Railway Board (supra), a right having accrued in favour of the petitioner for consideration for appointment cannot be taken away by virtue of issuance of subsequent Office Memorandum.

In view of above analysis we are of the considered opinion that since right of consideration have accrued in favour of respective petitioners for appointment on compassionate ground vide Office Memorandum dated 9.10.98, respondents on the basis of subsequent Office Memorandum issued on 3.12.99 and 5.5.03; whereby, a time is fixed, cannot deprive the petitioners from the right of consideration.

We accordingly direct the respondents to consider the claim of respective petitioners for appointment on compassionate ground on merit. While considering respective claim, the respondents would be guided by the stipulations as contained in Office Memorandum dated 5.5.03, which stipulates that the case is to be considered on its own merit, keeping in view the financial status of the family during the interregnum period. The respondents will also be guided by the principle of law as laid down by Full Bench of this Court in Bank of Maharashtra V. Manoj Kumar Deharia (supra).

In the result, petitions are allowed to the extent above. However no costs.