Naresh Kumar vs Union of India and Others

Tashi Rabstan, J.â€"This Letters Patent Appeal is directed against the judgment and order dated 19.03.2002 passed by the learned Single Judge

in SWP No. 2107/2001 whereby the writ petition filed by the writ petitioner-appellant herein, was dismissed. The facts giving rise to this Appeal

are that the father of appellant-writ petitioner namely, Late Mohan Lal was working as Farm Hand in Military Farm, Jammu since 1975 and died

on 21st December, 1997 due to prolonged illness. On 16.01.1998, the appellant-writ petitioner's mother submitted an application to the DADMF,

Northern Command, C/o 56 APO, thereby seeking compassionate appointment in favour of her son, i.e., the appellant-writ petitioner on the post,

vacancy of which was caused due to the death of her husband. The said application was forwarded to the Director Military Farms Headquarter

Northern Command by the OIC Military Farms, Jammu. Vide letter dated 20.11.2000, but the appellant-writ petitioner's case was rejected on the

ground of non-availability of the vacancy. He thus filed the writ petition.

Learned counsel for the appellant-writ petitioner argued that letter dated 20.11.2000 is in violation of the provisions of Compassionate Scheme.

It is further urged that there was vacancy at the time when the application was submitted by the mother of the appellant-writ petitioner and now the

respondents cannot deny the claim of the appellant-writ petitioner on the ground that in absence of the vacancy, he cannot be appointed on

compassionate ground though he is being eligible for compassionate appointment.

It is further contended that in case there is no vacancy, even then the respondents should take up the matter with other Ministry/Offices of the

Government of India for providing appointment to those in the waiting list. In this regard learned counsel for the petitioner referred para 7 (f) of the

Scheme dated 09.10.1998.

The stand taken by the respondents-Union of India is that at the time of processing the case of the appellant-writ petitioner, there was no

vacancy available because out of 79 authorized strength, the Unit was having 77 permanent staff and 2 CLTS. During August, 1998, the

permanent establishment of the Farm was reviewed and reduced to 68 from 79 by the competent authority, therefore, the staff held on strength

became over and above the sanctioned permanent establishment and surplus staff was sent to the AG's Branch Army HQ for their adjustment.

It is also argued by learned counsel for the respondents that even otherwise, presently there was a ban imposed on recruitment by the Army

Headquarters. Learned counsel further stated that Clause (f) of Para 7 of the Compassionate Scheme, referred to hereinabove, stands deleted vide

Ministry of Personnel, Public Grievances and Pension's letter No. 14014/23/99/Estt (D) dated 03.12.1999 and now there is no provision where

other Ministry/Department/Offices can be asked to accommodate the persons in the waiting list in a particular office. It is noticed in OM dated

03.12.1999 that a request for compassionate appointment is to be examined taking into account the position regarding availability of vacancy for

such appointment. Instructions provide that the name of the candidates for compassionate appointment should not be kept in the waiting for more

than one year.

Heard learned counsel for the parties and perused the writ record and the judgment impugned.

Perusal of the writ record reveals that the reason for rejection of the application of the appellant-writ petitioner was due to non-availability of the

vacancy and having surplus staff, due to reduction of the staff strength to 68 from 79 of permanent establishment. Even otherwise, it is clear from

the OM dated 03.12.1999, issued by the Government of India, Ministry of Personnel, Public Grievance and Pension whereby Clause (f) of Para 7

of the Scheme has been deleted.

It is well settled law laid down by the Apex Court as well as by this Court that compassionate appointment is an exception to constitutional

schemes of equitability under Articles 14 and 16 of the Constitution of India, and nobody can claim appointment by way of inheritance. It is also

observed by the Apex Court that the Courts cannot order for appointment on compassionate grounds de hors the statutory provisions.

The Apex Court in case MBG Gramin Bank v. Chakrawarti Singh, reported as 2013 AIR SCW 4801 , while relying on the judgment passed in

case titled Umesh Kumar Nagpal Vs. State of Haryana and Others, , has observed as under:--

The Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment on compassionate ground

may not be claimed as a matter of right nor an applicant becomes entitled automatically for appointment, rather it depends on various other

circumstances i.e. eligibility and financial conditions of the family, etc., the application has to be considered in accordance with the scheme. In case

the Scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the

cause of action had arised i.e. death of the incumbent on the post. In State Bank of India & Anr. (supra), this Court held that in such a situation,

the case under the new Scheme has to be considered.

The Apex Court in case State of Gujarat and Others Vs. Arvindkumar T. Tiwari and Another, , held as under:--

It is a settled legal proposition that compassionate appointment cannot be claimed as a matter of right. It is not simply another method of

recruitment. A claim to be appointed on such a ground, has to be considered in accordance with the rules, regulations or administrative instructions

governing the subject, taking into consideration the financial condition of the family of the deceased. Such a category of employment itself, is an

exception to the constitutional provisions contained in Articles 14 and 16, which provide that there can be no discrimination in public employment.

The object of compassionate employment is to enable the family of the deceased to overcome the sudden financial crisis it finds itself facing, and

not to confer any status upon it. (Vide: Union of India & Ors. v. Shashank Goswami & Anr.).

Fixing eligibility for a particular post or even for admission to a course fells within the exclusive domain of the legislature/executive and cannot

be the subject matter of judicial review, unless found to be arbitrary, unreasonable or has been fixed without keeping in mind the nature of service,

for which appointments are to be made, or has no rational nexus with the object(s) sought to be achieved by the statute. Such eligibility can be

changed even for the purpose of promotion, unilaterally and the person seeking such promotion cannot raise the grievance that he should be

governed only by the rules existing, when he joined service. In the matter of appointments, the authority concerned has unfettered powers so far as

the procedural aspects are concerned, but it must meet the requirement of eligibility etc. The court should therefore, refrain from interfering, unless

the appointments so made, or the rejection of a candidature is found to have been done at the cost of 'fair play', 'good conscious' and 'equity'

(Vide: State of J&K v. Shiv Ram Sharma & Ors. and Praveen Singh v. State of Punjab & Ors.).

The Apex Court has also taken the same view in case Director General of Posts and Others Vs. K. Chandrashekar Rao, .

The Apex Court in case titled Himachal Road Transport Corporation Vs. Dinesh Kumar, , held that it will be a gross abuse of the powers of a

public authority to appoint persons when vacancies are not available. Para 10 of the aforestated judgment is reproduced hereunder:--

We are of the view that the Himachal Pradesh Administrative Tribunal acted illegally and without jurisdiction in passing the orders dated 27-3-

1995 and in directing that the respondents be appointed in the regular clerical posts forthwith. In the absence of a vacancy it is not open to the

Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are

not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorized. Normally, even if

the Tribunal finds that a person is qualified to be appointed to a post under the kith and kin policy, the Tribunal should only give a direction to the

appropriate authority to consider the case of the particular applicant in the light of the relevant rules and subject to the he appointment of any

person to a post or direct the authorities to concerned to create supernumerary post and then appoint a person o such a post. We are of the view

that directions given by the Administrative Tribunal, in these two appeals, are totally unauthorised and illegal. We are therefore constrained to set

aside the orders appealed against. We hereby do so and allow the appeals. There shall be no order as to costs.

The learned Single Judge has considered each and every aspect of the plea of the parties.

Therefore , we are not inclined to take a view other than the one taken by the Single Judge. The appeal, therefore, merits to be dismissed.

Accordingly, the Appeal stands dismissed along with connected CMA(s), if any