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Judgment
T. Nandakumar Singh, J—Heard Ms. T Yankyi, learned counsel for the petitioner and Ms. S Bhattacharjee, learned GA appearing for the State respondents.
By this writ petition, the petitioner is assailing the letter/order dated 03.07.2014 wherein and where-under, the case of the petitioner for appointment on compassionate ground had been rejected only on the ground the petitioner''s mother was working at the time of the death of her father on casual basis. For easy reference, the impugned letter/order dated 03.07.2014 (Annexure-XIII to the writ petition) is quoted hereunder:--
"GOVERNMENT OF MEGHALAYA HEALTH & FAMILY WELFARE DEPARTMENT
No. Health. 113/2013/16, Dated Shillong, the 3rd July, 2014
From: Shri. B.N. Sangma, Under Secretary to the Government of Meghalaya Health & Family Welfare Department.
To,
The Director of Health Services (Research), Meghalaya, Shillong.
Sub: Compassionate Appointment in respect of Smti. Nirmala, d/o (L) Krishna Chettri, Ex-Driver, attached to DHR (R), Shillong.
Ref: No. DHS (R)/ESTT/Comp/2013-14/5490, Dt. 29.08.13.
Madam,
In inviting a reference to the subject and letter No. quoted above, I am directed to inform you that the Government regret its inability to agree to your proposal for compassionate appointment in respect of Smti. Nirmala Chettri, d/o (L) Krishna Chettri, ex-Driver attached to DHS (R), Shillong as the applicant''s mother was still working at the time of death of her husband.
Necessary papers are returned herewith.
This is for favour of your information and necessary action.
Yours faithfully, Sd/- Under Secretary to the Government of Meghalaya, Health & Family Welfare Department.
Memo No. Health. 113/2013/16-A, Dated Shillong, the 3rd July, 2014.
Copy for information forwarded to:
Smti. Nirmala Chettri, Pasteur Hills, Shillong-793001.
By Orders etc., Sd/- Under Secretary to the Government of Meghalaya, Health & Family Welfare Department"
The petitioner is the eldest daughter of (L) Krishna Chettri, who was working as Driver under the respondent No. 3 and he died on 21.01.1995 while he was in service. The Govt. of Meghalaya also introduced the scheme for employment on compassionate ground vide office memorandum No. PER(AR)154/78/147 dated 11.12.1984 (Annexure-I to the writ petition). For easy reference, the said office memorandum dated 11.12.1984 is reproduced hereunder:--
"GOVERNMENT OF MEGHALAYA PERSONNEL & A.R. (B) DEPARTMENT
NO. PER(AR)154/78/147 Dated Shillong, the 11th December, 1984
Office Memorandum
Subject : Employment on compassionate ground of the son/Daughter/near relatives of the Govt. servant who dies while in service.
The matter regarding employment on compassionate ground of the son/daughter/near relatives of the Govt. servant who dies while in service has been engaging the attention to the Government for sometime past. After careful examination, Government have decided to introduce a scheme for providing employment on compassionate ground to the next of kin who may be the wife/husband/son/daughter of a Government servant who dies while in service on the following principles:--
"1) That employment on compassionate ground shall apply only to Class III or Class IV posts under the State Government.
2) Only the wife/husband/son/daughter of the Govt. servant (thereafter called relative) who is required to support the family of the deceased will be eligible to be considered for such employment.
3) The benefit of such employment will be available to only one relative.
4) Employment on compassionate ground should be given only at the lowest rung of the ladder for which the applicant is educationally qualified.
5) In selecting the next of kin, the Head of Department may make an assessment as to who will be most satisfactory to provide succor to the family of the deceased.
6) This concession will be applicable only to such cases where the concerned Government servant has put in at least 5 years continuous service against a regular post.
7) There should be relaxation of age limit for recruitment upto the age of 50 years. If relaxation is required to be made even in the minimum age limit, such relaxation may be considered if it does not exceed a period of 1(one) year below the age limit prescribed in their recruitment rules for the post applied for.
8) No relaxation in educational qualification should be allowed in compassionate appointment.
9) If none of the relatives is eligible on grounds of age or educational qualification on the date of the death of the Govt. servant, an eligible relative who acquires the qualifications within 5 years from the date of premature death of the Govt. servant may be given such employment provided that he/she is within the age limit prescribed for the post subject to relaxation mentioned in paragraph 7 above.
10) Application in the Standard Forms in the Annexure, for such employment should be made to the chief Secretary to the Government of Meghalaya through the Head of Department/Office in which the Government servant was last employed. The Head of Department/Office should send the application with his remarks to the concerned Administrative Department which will refer it to the Chief Secretary. The application must be submitted within one year from the date of premature death of the Government servant or from the date of acquiring the necessary educational qualification if none of the relatives is educationally qualified at the time of such death, as the case may be.
11) The appointments can be made only against such posts for which direct recruitment has been provided in the relevant recruitment rules.
12) The grant of such employment is not to be allowed as a matter of course. The financial circumstances of the family would be taken into consideration for eligibility.
13) Appointments to posts and services under this scheme shall be made by respective appointing authorities after approval of Administrative Department concerned with the approval of the Personnel and Administrative Reforms (B) Department.
14) Consultation with the Meghalaya Public Service Commission or District Selection Committee as the case may be, is not required for appointment under this scheme.
15) Employment on compassionate ground should not affect adversely the employment policy of 40:40:5 in respect of Khasi Jaintias, Garos and other Scheduled Castes/Scheduled Tribes. If the quota has been exhausted in a particular category, the appointment may be made immediately but adjusted against the next year''s quota.
16) Every case of employment on compassionate ground will be considered on its own merit in the light of the principles enunciated at preceding paragraphs.
17) The appointing authorities, the Head of Department and the Administrative Departments concerned should each maintain a register in which the name, designation and date of death of the Government servant as well as the name, relationship of the applicant and the post against which he is appointed should be entered so as to facilitate verification.
This will take immediate effect.
Sd/- GW Chyne, Secretary to the Govt. of Meghalaya Personnel & Admv. Reforms (B) Department"
The respondents had filed affidavit-in-opposition wherein, it is stated that there is a considerable delay in filing the application for appointment on compassionate ground by the petitioner. Ms. T Yankyi, learned counsel for the petitioner strenuously contended that legality or otherwise of the impugned order is to be decided on the basis of the reasons mentioned in the impugned order itself and she further contended that by way of an affidavit-in-opposition or affidavit, reasons for passing the impugned order cannot be brought in. In other words, the legality or otherwise of the impugned order is to be decided strictly on the reasons mentioned therein. This proposition of Ms. T Yankyi, learned counsel for the petitioner is acceptable inasmuch as, the Apex Court in a catena of cases held that the validity or otherwise of the impugned order is to be decided on the basis of the reasons mentioned therein and reasons cannot be supplemented by filing the affidavit-in-opposition. On careful perusal of the scheme for appointment on compassionate ground, it is clear that merely one of the dependents of the employee who died in harness was working on casual basis may not be the ground for rejecting the application for appointment on compassionate ground inasmuch as under the said office memorandum dated 11.12.1984, precarious financial conditions of the dependent of the employee who died in harness is one of the considerations for appointment on compassionate ground. In the writ petition, it has been mentioned that after the death of the petitioner''s father, the dependents of the petitioner''s father were left in a very precarious financial condition.
Considering the submissions of the learned counsel appearing for the parties and also for the reasons discussed above, this Court is of the considered view that the impugned letter/order dated 03.07.2014 is required to be interfered with. Accordingly, the impugned letter/order dated 03.07.2014 is hereby set aside and the respondents are directed to consider the case of the petitioner for appointment on compassionate ground as expeditiously as possible taking into consideration of the precarious financial conditions of the dependents of the deceased employee. However, it is made clear that the whole exercise for considering the appointment of the petitioner on compassionate ground should be completed within a period of 5 (five) months from the date of receipt of a certified copy of this judgment and order.
Writ petition is allowed to the extent indicated above.