Naresh Kumar vs The Union Of India

Applicant’s father was working as Mailman in Department of Posts. He unfortunately died on 30.04.2001 while still in service. He left behind

his widow and two sons, aged 22 years and 18 years. The applicant herein is the elder son and he applied for compassionate ground appointment. The

case was considered by the Circle Relaxation Committee in their meeting held on 07.02.2002. However, taking overall indigent circumstances into

account, the case was not recommended for such appointment. The decision of rejection was advised on 01.04.2002 to the concerned office with

direction to advice the applicant. This letter reads as under:

“The above mentioned case of compassionate appointment was received in this office and duly considered by the committee constituted for the

purpose. The case has been examined on merits under the existing rules taking into consideration the number of family members/earning members,

their marital status, terminal benefits already paid and the financial status as reflected in the application and also within the 5% of vacancies under

direct recruitment within year 2001.

I have been directed by the competent authority to regret to inform you that the committee having considered the case carefully and sympathetically

in relation to other similar cases has not found the dependent of the deceased to be in indigent condition and as such do not come under the purview of

most deserving cases under the scheme for compassionate appointment against the 5% of the vacancies falling under the direct recruitment quota for

the year. Hence the committee has not recommended the case.

The applicant may please be informed accordingly.â€​

Later on, the widow applied for the compassionate ground appointment for her elder son on 06.04.2004 and the applicant also approached various

authorities seeking such appointment. In due course, unfortunately the widow mother also died of Cancer on 19.01.2007.

The applicant filed an RTI application and obtained the file notings on 18.04.2017. Since his request for compassionate ground appointment was not

agreed, he felt aggrieved and filed the instant OA. The following relief has been sought:

“a) Direct the respondents to consider and appoint the applicant employee on the ground compassionate it is matter of fact that father of the

applicant Shri Ramesh Chand has expired on 30.04.2001, during course of employment.

b) Direct the respondents to produce the record from 2001 to till date, how many appointment 5% reserved for compassionate ground.

c) Pass any order or direction further as deemed just and proper, reasonable and equitable on the facts and circumstances of the case and award the

cost this OA in favour of applicant against the respondent.â€​

3.1 The applicant claimed that he has passed secondary school examination held in October, 2000 and in support thereof, marks sheet issued by

National Open School, New Delhi has been attached to OA. This obtained marks indicates following:

“1. English 34 P

Social Science 38 P

Hindi 33 P

Science 10 F

Mathematics 07 F

Result xxxâ€​

During the hearing, a doubt arose whether the letter dated 01.04.2002 (para-1 supra) was advised to the applicant and accordingly the respondents

were directed on 08.05.2018 to check and report on this aspect. It came out that the decision communicated on 01.04.2002, was in turn advised to the

applicant vide letter dated 09.04.2002. This letter reads as under:

“Sub:- Compassionate appointment case of Shri Naresh Kumar S/o Late Shri Ramesh Chand, Ex. MM expired on 30.04.01.

Your case of appointment on compassionate ground was forwarded to the Competent Authority by this office but the Competent Authority after

considering the case and keeping in view existing rules in respect of family members/earning members/ their marital status/terminal benefits already

paid and financial status/employment within the 5% of the vacancies under direct recruitment has regretted for your appointment.

This is for your kind information.â€​

The applicant has relied upon a judgment of the Hon’ble Supreme Court in Auditor General of India & Others v. G. Ananta Rajeswara Rao,

[(1994) 1 SCC 192]. The relevant parts of the matter under consideration in this case and the decisions thereupon are reproduced below:

“1. This appeal, by special leave, arises against the judgment of the Andhra Pradesh High Court in Writ Appeal No. 20 of 1981 dated February 3,

1981. The respondent made an application to the appellant to appoint him as a clerk as his father died in harness in 1967 while working in the office of

the Auditor-General, Government of India at Andhra Pradesh. He was qualified for appointment. He passed his PUC examination and he applied for

the appointment on compassionate grounds. The application made on December 26, 1979 since was not considered nor appointed, he filed Writ

Petition No. 6173/79 and the learned single Judge dismissed the Writ Petition. On appeal, while dismissing, the Division Bench declared that the

Memorandum is violative of Art. 16(2) of the Constitution as the appointment of descendent is ultra vires of Art. 16(2). However, while granting

leave, the appellant had given an undertaking to absorb him in any vacancy that would arise in future. The respondent appears to have been appointed.

He is not represented in the appeal.

The only question that arises for decision is whether the Memorandum is violative of Art. 16(2) of the Constitution? Article 14 genus provides

equality of opportunity and equal protection of the laws and it prohibits discrimination. Article 16(2) species prohibits discrimination, thus:

No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated against

in respect of, any employment or office under the State.

xxx xxx xxx

The Division Bench of the Andhra Pradesh High Court relied upon in the judgment in Ms. P. S. Geeta v. Central Bank of India, Bombay, reported

in 1978 Lab IC 1271. Therein the circulars issued under the Banking Companies Acquisition and Transfer of Undertakings Act for appointment of the

sons of the employees were sought to be implemented. The vires thereof had come up for Consideration and the Division Bench held that reservation

of 25% to the sons of the employees of the banks and relaxation of the educational qualifications and relaxation of the percentage of marks for

appointment were held to be violative of Art. 16(2) of the Constitution. We agree with the reasoning and ratio of the above judgment.

Learned counsel relied upon Smt. Sushma Gosain v. Union of India reported in AIR 1989 SC 1976 and Smt. Kamala Gaind v. State of Punjab, 1990

(Supp) SCC 800. In the first case, it is only the reiteration of what has been stated in the memorandum but the question of vires was not considered.

In the second case, the Punjab Government due to special circumstances prevailing therein, had issued instructions to appoint the children of the

deceased Government employees and the provision was made to appoint to the Class I post. Under those circumstances, the direction was given to

consider the person who was eligible for appointment to the Class I post. This ratio does not assist us to determine the vires when a memorandum was

challenged under Art. 16(2) of the Constitution. That question was not in issue in that case. The appeal is allowed in part. No costs.â€​

The applicant pleads that respondents be directed to provide him the relief sought in this OA.

The respondents had opposed the OA. It is pleaded that the Scheme in respect of compassionate ground appointment does not give a vested right to

anyone. It is only a benevolent consideration to be extended to the family of the deceased employee to take care of their immediate financial needs

and to avoid the condition of penury. In this regard the objectives of the compassionate ground appointment Scheme as per DoP&T OM dated

09.10.1998 is reproduced as follows:

“The object of the Scheme is to grant appointment on compassionate grounds to dependent family members of a Government servant dying in

harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood, to relieve the family of the

Government servant concerned from financial destitutions and to help it to get over the emergency.â€​

In the instant case, the required consideration was extended. However, considering the overall indigency conditions, the applicant’s case was not

found justified and accordingly was not recommended for such appointment.

The respondents also brought out that the object of the compassionate appointment scheme is to take care of their immediate financial needs. In the

instant case, the death of the deceased employee took place in the year 2001 and a period of more than 15 years had already elapsed. The family has

been surviving for all these years and as such it is contrary to the objectives of the Scheme to consider such a request now. Accordingly, the OA is

required to be dismissed.

The matter has been heard. Shri T.N. Tripathi with Shri M.K. Parvez, learned counsel represented the applicant and Shri Manish Kumar, learned

counsel represented the respondents.

The appointment under the compassionate ground Scheme is not a vested right. It is a benevolent consideration to be extended by the department

so as to take care of immediate financial needs of the family of the deceased and to avoid the condition of penury. This aspect is very clear from the

relevant notification issued by DoP&T vide OM dated 09.10.1998 (para-6 supra).

This consideration was extended to the applicant in the year 2001 itself. The appropriate Committee considered the applicant’s case in their

meeting held on 07.02.2002 and did not find the case justified. Accordingly, the case was rejected and the applicant was advised also vide letter dated

09.04.2002 (para-4 supra).

The applicant has relied upon a judgment by the Hon’ble Apex Court (para-5 supra). As is clear from the said judgment, the ratio applies to a

different aspect of compassionate ground appointment Scheme and this judgment is of no help to the applicant in the instant case.

The pleadings by the applicant are not finding acceptability. In view of the foregoing, the OA is dismissed being devoid of merit. No costs.