Nanak Chand vs Delhi Jal Board

Hima Kohli, J.—With the consent of counsels for the parties, both these writ petitions are taken up for final hearing and disposal by passing

a common order, as the issues involved are common.

By way of the present petitions the petitioners have sought issuance of a writ of mandamus, or any other appropriate writ, order or direction for

quashing/declaring the order dated 10th April, 2006 passed by the respondent rejecting the claims of the petitioners for appointment on

compassionate grounds.

For the sake of convenience, only the facts of W.P.(C) No. 12609, are being stated in brief. The father of the petitioner was working as a

`Fitter II Class'' with Delhi Jal Board and died in harness while in service on 23rd October, 2001 at Delhi, leaving behind the petitioner and the

petitioner�s mother. The petitioner applied for appointment on compassionate ground vide application dated 15th February, 2002. On 20th

September, 2002, the respondent after considering the application of the petitioner for compassionate appointment, directed the petitioner to

appear for Interview on 23rd October, 2002. The petitioner appeared for the said interview and was informed by the respondent vide its letter

dated 9th October, 2003 that his application had been considered by the Screening Committee in its meeting and his application was rejected by

the Competent Authority on the grounds that �he having own house, no other liability, sufficient terminal dues and pension etc.�. Thereafter

the petitioner sent some reminders to the respondent but having received no reply to the same, a writ petition being W.P.(C) No. 10931/2005 was

filed in this Court by the petitioner which was allowed vide order dated 1st February, 2006 on the ground that since the petitioner had originally

not made a claim for compassionate appointment with reference to his caste, he was given the liberty to approach the respondent afresh with an

application with the direction that the same shall also include his claim for consideration as a scheduled caste in quota available for compassionate

appointment. Pursuant thereto, the petitioner moved another application for consideration on suitable post on compassionate ground under the

Scheduled Caste category on 23rd February, 2006. Accordingly the petitioner appeared for an interview on 9th March, 2006 but by its order

dated 10th April, 2006 the application of the petitioner was rejected on the ground that there was no post lying vacant against the reserve quota

for compassionate appointment and also for the reason that there were other deserving cases found in more merciful conditions, than that of the

petitioner.

Learned Counsel for the petitioners stated that the grounds on which the application for compassionate appointment was rejected are totally

wrong, incorrect, false and malafide. It was submitted that the respondent has not considered that the petitioners in both the cases are unemployed,

having no source of income whatsoever except the meager pension of the deceased father, which is not sufficient for the whole family. While it is

stated in the WP (C) No. 12609/2006, that the petitioner has a large family including his wife, three minor children and his mother, the petitioner in

W.P.(C) No. 12613/2006 has his wife, two children and his mother to support, which it was contended is not possible with a family pension of

Rs. 3,500/- per month.

On the other hand, learned Counsel for the respondent submitted that according to the directions and Rules issued by the Government of India,

the direct recruitment on the basis of the compassionate grounds in the respondent board has been reserved at 5% and it was due to the large

number of applications received for appointment on compassionate grounds that a Departmental Screening Committee had been constituted so

that these matters could be decided fairly. For the purpose of making such appointments, an eligibility criteria had been evolved keeping in view the

age of the employee at the time of the death, the number of his children and their ages, family property, amount of benefits given to the family and

family pension etc., and it was only after considering the said factors, that the Screening Committee gave its recommendation. It was stated that the

deceased employees in both cases had already served 2/3rd of the total periods of their employment and that the payments made to the family by

way of family pension and other retrial dues was found sufficient. Further, it was stated that there was no post lying vacant against the reserved

quota and Therefore the applications of the petitioners were rightly rejected.

Counsel for the respondent also argued that once the department concerned comes to the conclusion that the financial position of the applicant

does not warrant compassionate appointment, then the High Court should not undertake any exercise to decide what would be reasonable income

which should be sufficient for the survival of the family and whether it had been left in penury or without any means of livelihood. Reliance in this

regard was placed on the judgment rendered by the Supreme Court in the case of State Bank of India and Anr. v. Somvir Singh reported as JT

2007(3) SC 398. Reliance was also placed on the judgment rendered by a Division Bench of this Court in the case of Smt. Savitri Devi and

Another Vs. Union of India (UOI) and Others, , to state that once the petitioners were receiving family pension and the deceased employees had

already completed majority of their service tenure, it cannot be said that the family was not able to make both ends meet.

I have heard the counsels for the parties and have carefully perused the pleadings and other documents, including the records of the case of the

petitioner produced by the respondent. I have also given my thoughtful consideration to the rival contentions of both the parties.

Before weighing the merits of the arguments advanced by the parties, it is appropriate to note certain basic parameters as laid down by the

Apex Court, that are to be kept in mind while dealing with the cases of compassionate appointment. While considering the case of compassionate

employment, it is to be kept in mind that it is not unduly unfair to the rights of those other persons who are eligible to seek appointment against a

post which would have been available but for the provision enabling appointment being made on compassionate grounds to the dependents of the

deceased employee. Reliance in this regard can be placed on the judgment rendered by the Supreme Court in the case of State of Manipur Vs.

Md. Rajaodin, . Appointment on compassionate ground cannot be claimed as a matter of right and such appointment cannot be made applicable

to all types of posts irrespective of the nature of service rendered by the deceased employee. A claim for appointment on compassionate basis has

been considered as reasonable and permissible keeping in view the sudden crisis occurring in the family of an employee who has served the state

and died while in service. However the rules, regulations, administrative instructions and orders in this behalf must stand the test on the touchstone

of Articles 14 and 16 of the Constitution of India. Appointment on compassionate basis is not another source of recruitment but merely an

exception to the aforesaid requirement taking into consideration the effect 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 tide over the sudden financial crisis.

It is to be noted that compassionate appointments in the respondent board were governed by scheme, regulations and policy guidelines in this

regard, according to which compassionate appointment could be made up to a maximum of 5% of vacancies falling under direct recruitment quota.

Such appointments on compassionate ground have to be made only in accordance with the rules, regulations or administrative instructions and

taking into consideration the family condition of the family of the deceased. Support is drawn from the following judgments:

(i) Umesh Kumar Nagpal Vs. State of Haryana and Others,

(ii) State of Haryana and Others Vs. Rani Devi and Another, and

(iii) State of Haryana and Another Vs. Ankur Gupta,

It is to be noted that the Supreme Court in the case of Hindustan Aeronautics Ltd. Vs. Smt. A. Radhika Thirumalai, , has held that the

appointment on compassionate grounds can be made only if a vacancy is available for that purpose and the said judgment has been followed by a

single judge of this Court in the case of Jashbir Singh Vs. The Director (INMAS) and Others,

In the present case also, the applications of the petitioners were rejected primarily on the ground that there was no vacancy even in the

reserved category for compassionate appointment and also on the ground that while in the case of petitioner in WP (C) No. 12613/2006, all his

brothers were found to be major, married, were doing private work and could sustain themselves, in case of the petitioner in W.P. (C) No.

12609/2006, it was noticed that the petitioner was a major, owned a house, had no other liability and had already received terminal dues worth

Rs. 3.76 lakhs from the respondent and both the petitioners were also receiving family pensions. It is also revealed from the records that the

request of the petitioners to be considered for appointment on compassionate grounds was considered twice, once in October 2003, and the

second time in April 2006, in pursuance of the order of this Court, treating the petitioners as reserved category candidates. On such consideration,

it was held by the respondent that the petitioners had no liability as such and had sufficient means to tide over the sudden financial crisis created on

the demise of their father. It is now a settled law that retrial benefits and other sources of income have also to be taken into consideration while

granting appointment on compassionate grounds. In view of absence of any vacancy and the fact that there were more deserving cases than those

of the petitioners, the respondent rejected their claim. The aforesaid consideration and the grounds for rejection cannot be said to be arbitrary and

irrelevant. The decision taken is in accordance with the provisions of the Scheme and the ratio of the decisions of the Supreme Court on the said

issue. It is to be noted that the object of compassionate appointment is not to create a post that is hereditary in nature, and since such appointments

are made as an exception to the regular mode of recruitment, they have to be made strictly in conformity with the rules laid down with regard to

such appointment.

Reliance has been rightly placed by the counsel for the respondent on the judgment of the Supreme Court in the case of State Bank of India

(supra), wherein it was held as under:

In our considered opinion the High Court itself could not have undertaken any exercise to decide as to what would be the reasonable income

which would be sufficient for the family for its survival and whether it had been left in penury or without any means of livelihood. The only question

the High Court could have adverted itself is whether the decision making process rejecting the claim of the respondent for compassionate

appointment is vitiated? Whether the order is not in conformity with the scheme framed by the appellant-Bank? It is not even urged that the order

passed by the Competent Authority is not in accordance with the scheme. It is well settled that the hardship of the dependant does not entitle one

to compassionate appointment de hors the scheme or the statutory provisions as the case may be. The income of the family from all sources is

required to be taken into consideration according to scheme which the High Court altogether ignored while remitting the matter for fresh

consideration by the appellant-Bank. It is not a case where the dependants of the deceased employee are left ''without any means of livelihood''

and unable to make both ends meet. The High Court ought not to have disturbed the finding and the conclusion arrived at by the appellant- Bank

that the respondent was not living hand to mouth. As observed by this Court in General Manager (D and PB) and Others Vs. Kunti Tiwary and

Another, the High Court cannot dilute the criteria of `penury'' to one of ""not very well-to-do"". The view taken by the Division Bench of the High

Court may amount to varying the existing scheme framed by the appellant-Bank. Such a course is impermissible in law.

The following observations of the Supreme Court in the case of Union Bank of India and Others Vs. M.T. Latheesh, are also noteworthy:

In the present case, by declining the application submitted by the respondent after the proper consideration of the same in the light of the

relevant parameters, the appellant-Bank cannot be said to have acted in an arbitrary manner regardless of the constitutional principles.

It is also settled law that the specially constituted authorities in the rules or regulations like the competent authority in this case are better

equipped to decide the cases on facts of the case and their objective finding arrived on the appreciation of the full facts should not be disturbed.

Learned Single Judge and the Division Bench by directing appointment has fettered the discretion of the appointing and selecting authorities. The

Bank had considered the application of the respondent in terms of the statutory scheme framed by the Bank for such appointment. After that even

though the Bank found the respondent ineligible for appointment to its service, the High Court has found him eligible and has ordered his

appointment. This is against the law laid down by this Court. It is settled law that the principles regarding compassionate appointment that

compassionate appointment being an exception to the general rule the appointment has to be exercised only in warranting situations and

circumstances existing in granting appointment and guiding factors should be financial condition of the family. The respondent is not entitled to claim

relief under the new Scheme because the financial status of the family is much above the Criterion fixed in the new scheme.

The mandate of the Supreme Court is very clear from the aforestated judgments that it is not for the High Court in exercise of its powers under

Article 226 of the Constitution of India to interfere with the decision arrived at by the competent authority while considering the eligibility of an

applicant for appointment on compassionate basis and all it can do is to see whether the decision of the competent authority is vitiated. Having

scrutinized the cases in hand in the aforesaid background, this Court does not consider it appropriate to interfere with the findings of facts and the

conclusion arrived at by the competent authority.

In the light of the above discussions, the writ petitions are dismissed being devoid of merits. There shall be no order as to costs.