Phulmati Devi & Ors vs Union Of India & Ors

B.K. Shrivastava, Member (J)

This OA has been filed on 24.07.2012 for quashing the order dated 16.04.2012 (Annexure A-1) passed by respondent No.3 by which the claim of the applicant No.2, Arun Kumar for appointment on compassionate grounds has been rejected. The relief claimed in Para-8 of the OA as under:-

“(a) To issue, a writ, order, or direction in the nature of certiorari to quash the impugned order dated 16 Apr 2012 (Annexure A-1 to compilation No.1) passed by Respondent No.3.

(b) To issue a writ, order, or direction in the nature of Mandamus directing the respondents to consider the case of applicant No.2 for appointment against a suitable post with the respondents in three fresh boards under the provisions of scheme.

(c) To issue another writ, order or direction in favour of the applicant as deem fit and proper in the circumstances of the case.

(d) Award the cost of the application in favour of the applicant.”

It is not in dispute that Shyam Deo was the husband of applicant No.1 Smt. Phulmati Devi (now deceased and her name has been deleted) and the father of applicant No.2, Arun Kumar. Shri Shyam Deo was serving in COD Chheoki as Fire Master and expired on 01.01.2009 at that time his service about 2 years and 5 months was left out. Applicant No.1 submitted the application for the compassionate appointment of applicant No.2 with the relevant documents and after consideration, the aforesaid application has been rejected by respondent No. 3 vide order dated 16.04.2012, Annexure A-1.

As per the applicant’s case, the respondents considered the application of the applicant in three times on 30.03.2010, 30.03.2010 and 31.01.2012 against the vacancies for the year 2007-08, 2008-09 and 2009-10 in which the applicant No.2 was allotted 32, 32 and 47 marks respectively. As per the applicant, the case of the applicant was illegally placed before the Board for the vacancies for the year 2007-08, and 2008-09 because the death of the deceased employee was on 11.01.2009 and the prescribed application was submitted in April, 2009.

The applicant also submitted a copy of OM dated 09.10.1998, 09.03.2001 as amended on 22.01.2010 and a copy of a letter dated 05.05.2003 issued by DoP&T as annexure A-5.

According to the applicants, the respondents arbitrarily and illegally without considering the government letter dated 22.01.2010, rejected the claim of the applicant, therefore the aforesaid order is liable to be quashed. The main argument of the applicant’s counsel was based upon the ground that the death of Shyam Deo was on 11.01.2009, therefore the claim for compassionate appointment for the vacancies related to the year 2007-08, and 2008-09 cannot be considered, but the department illegally considered the name of applicant for the aforesaid years.

The respondents opposed the claim of the applicants by filing the counter affidavit on 02.01.2013. In the aforesaid affidavit, the respondents mentioned the clarification and submit that the claim of the applicant has been considered for the vacancies of three years but he does not come into merit. The details are also given in the counter affidavit and it is submitted that the applicant does not qualify the prescribed marks in comparison to other applicants, therefore his claim has rightly been rejected by the respondents.

It is argued by the respondents’ counsel that the claim of the applicant may be considered for the vacancies available on the date of consideration. It is not relevant that from which year the vacancies are arising. The date of death of the employee is not relevant. After filing the application for compassionate appointment the claim of the applicant may be considered for the vacancies which are available on the date of consideration. Therefore, it is argued that the OA of the applicant is liable to be rejected.

For better appreciation it will be useful to refer to the impugned order Annexure A-1 dated 16.04.2012.

“SPEAKING ORDER

Tele : 2697001/6321

Regd by Post

Central Ordnance Depot

Chheoki, Allahabad-212105

181453/B/Fire Master/Est(I)

16 Apr 2012

Skrí Arun Kumar

S/O late Shyam Deo

House No E.C. 148 A.D.A, Colony,

Naini, Allahabad (U.P.)

EMPLOYMENT ASSISTANCE IN R/O SHRI ARUN KUMAR S/O LATE SHYAM DEO OF COD CHHEOKI ON COMPASSIONATE GROUND

Reference your application dated 10 Apr 2009 regarding employment on compassionate grounds. The request for compassionate appointment was examined by the competent authority of this Headquarters as per the existing government rules and policies and the Hon 'ble Supreme Court rulings on the subject.

The scheme of appointment on compassionate grounds has been envisaged with the whole object of granting compassionate appointment to enable the family of the deceased to tide over the sudden crisis and to relieve the family of the deceased from financial destitution and to help it get over the emergency. The scheme does not necessarily imply that dependent of each and every deceased/medically boarded out/missing government employee will be offered appointment on compassionate grounds. It is pertinent to mention here that quota prescribed for the purpose of compassionate appointment is only 5% of the total DR vacancies occurring in a year, in Group C and D' posts. Therefore, all the compassionate appointment requests are considered by the Board of Officers constituted for the purpose as per government policy, to find out the most deserving cases which are in acute financial distress more indigent in comparison to other similarly placed cases, against the 5% quota of DR vacancies occurring in a given year.

To find out the most deserving cases, the Board of Officers take various aspects unto account as stipulated in Army Headquarters letter No. 93669/Policy/OS-8C(I) dated 30 Jul 1999 and MOD ID No. 19(4)/824-99/1998-D(Lab) dated 09 Mar 2001, such as family size (including ages of children), amnount of terminal benefits, amount of family pension, liability in terms of unmarried daughter(s), minor children etc., movable /immovable property left by the deceased at the time of death and recommends only the really deserving cases as per guidelines of marking system approved by the Ministry, that too only if clear vacancies, meant for appointment on compassionate ground exist within the ceiling of 5% DR vacancies. The Hon'ble Supreme Court has also rules in Judgment dated 04 May 1994 in the case of Umesh Kumar Nagpal Vs State of Haryana and others (JT 1994(3) SC 525) wherein it has been held that "Offering appointment on compassionate ground as a matter of course irrespective of the financial condition of the family of the deceased or medically retired government servant is legally impermissible and compassionate appointment cannot be granted after lapse of a reasonable period and it is not a vested right which can be exercised at any time in future."

In the present case, according to the information available on record, the following is the position/status of the family of the deceased(MBO Missing) government servant:

(a) The death of the government servant occurred on 11 Jan 2009. His four sons Shri Santosh Kumar, Shri Vinay Kumar, Arun Kumar & Shri Pawan Kumar survive him. The deceased government servant's family received Rs 08,24,089.00 as terminal benefits and family pension of Rs 6,490/- plus 65% dearness relief thereon.

(b) The family owns moveable/immovable property worth Rs 90,000 with monthly income Rs 2,000/- and a house (worth Rs Not known) to live in.

It is intimated that your request has been considered thrice by the Board assembled at Integrated Headquarters of MoD(Army) i.e. first & second time on 30 Mar 2010 against the vacancies of 2007-08 & 2008-09 respectively & third time on 31 Jan 2012 against the vacancies of 2009-10. As per policy explained above, you obtained the points first & second time in terms of MOD ID No 19(4)824-99/1998-D(Lab) dt 09 Mar 2001 as noted at para *(a) & third time in terms of MOD F No 19(3)2009/D (Lab) dt 22 Jan 2010 at para **(b) below :-

*{a) FIRST & SECOND BOARD HELD AT INTEGRATED HQ OF MOD (ARMY) ON 30 MAR 2010 AGAINST THE VACANCIES OF 2007-08 AND 2008-09

Assets/Liabilities

Amount/Number

Points Obtained

Family Pension

Rs.6490/-

06 out of Max 20 Points

Terminal benefits

Rs.0824089/-

00 out of Max 10 Points

Monthly income

Rs.2000/-

03 out of Max 05 Points

Movable /immovable property

Rs.90000/-

06 out of Max 10 Points

Number of dependents

04

15 out of Max 15 Points

Number of Unmarried daughters -

NIL

00 out of Max 15 Points

Number of minor children

NIL

00 out of Max 15 Points

Leftover service

02(Y) 05 (M)

02 out of Max 10 Points

---------------------------------------------------------------------------------------------------------------------------------------------------------

Total Points obtained

32 out of Max 100 Points

--------------------------------------------------------------------------------------------------------------------------------------------------------

**(b)THIRD TIME BOARD HELD AT INTEGRATED HQ OF MOD (ARMY) ON 31 JAN 2012 AGAINST THE VACANCIES OF 2007-08 AND 2009-10.

Assets/Liabilities

Amount/Number

Points Obtained

Family Pension

Rs.6490/-

14 out of Max 20 Points

Terminal benefits

Rs.0824089/-

04 out of Max 10 Points

Monthly income

Rs.2000/-

04 out of Max 05 Points

Movable /immovable property

Rs.90,000/-

08 out of Max 10 Points

Number of dependents

04

15 out of Max 15 Points

Number of Unmarried daughters -

NIL

00 out of Max 15 Points

Number of minor children

NIL

00 out of Max 15 Points

Leftover service

02(Y) 05 (M)

02 out of Max 10 Points

--------------------------------------------------------------------------------------------------------------------

Total Points obtained

47 out of Max 100 Points

--------------------------------------------------------------------------------------------------------------------

The total points obtained by the last candidate who was considered along with you in the aforesaid Board and consequently recommended for compassionate appointment are as under :

No. of

chance

Board held

on

No. Vacancy and year

No. of candidate

Points of last recommended applicant

Points of applicant

Position of the applicant.

I

30.03.10

29 (2007-08)

152

54 (Last recommended applicant)

32

139/152

II

30.03.10

40 (2008-09)

123

45 (Last recommended applicant)

32

110/123

III

31.01.12

31 (2009-10)

84

61 (Last recommended applicant)

47

61/84

On the basis of 5% of vacancies occurred during the period, only 29 vacancies in Ist Board, 40 vacancies in IInd Board and 31 vacancies in Illrd Board for Group C' posts, were earmarked for compassionate appointment. Your case was considered along with other candidates thrice and rejected on the basis of criteria laid down to determine relative hardships in the face of more deserving candidates and limited number of vacancies available.

Therefore, after due circumspection and consideration in the light of the enclosed guidelines of DOP&T and various judgments of the Hon’ble Supreme Court and that the appointment on compassionate grounds is not a matter of right and after a balanced and objective assessment of the totality of the circumstances of the case, the competent authority has rejected the employment assistance to you (Shri Arun Kumar S/o late Shyam Deo) on compassionate grounds.‘’

It is established by Catena of decisions of the Supreme Court that for all government vacancies equal opportunity should be provided to all aspirants as mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right.

In the case of H.P. vs. Shashi Kumar (2019) 3 SCC 653, the Supreme Court in Para-21 and 26 had an occasion to consider the object and purpose of appointment on compassionate ground and considered the decision of the Supreme Cort in Govind Prakash Verma vs. L.I.C. (2005) 10 SCC 289, it is observed and held as under:-

“21. The decision in Govind Prakash Verma [Govind Prakash Verma v.LIC, (2005) 10 SCC 289, has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138. The principles which have been laid down in Umesh Kumar Nagpal have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract:

… As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non−manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.”

“26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [Mumtaz Yunus Mulani v.State of Maharashtra, (2008) 11 SCC 384 : (2008) 2 SCC (L&S) 1077] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case.”

In the case of Madhuri Maruti Vidhate (supra), after severn years of death the direction was given by the High Court for appointment but Supreme Court set aside the order by saying that High Court committed serious error in directing the appellant to appoint the respondents on compassionate ground. The Supreme Court said in Para-7, 7.1 and 8 as under:-

“7. Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased.

7.1 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, to appoint the respondent now on compassionate ground shall be contrary to the object and purpose of appointment on compassionate ground. The respondent cannot be said to be dependent on the deceased employee, i.e., her mother. Even otherwise, she shall not be entitled to appointment on compassionate ground after a number of years from the death of the deceased employee.

Under the circumstances and in the facts and circumstances of the case narrated hereinabove, the Tribunal as well as the High Court have committed serious error in directing the appellants to appoint the respondent on compassionate ground. The judgment and order passed by the Tribunal confirmed by the High Court directing the appellants to consider the case of the respondent for appointment on compassionate ground after a number of years is unsustainable.

It appears from the aforesaid case law that the provision of the compassionate appointment has been made for support of the family in case of sudden financial crises. The appointment is not a right but only a concession. Therefore, it should be seen that in each and every case whether any urgency or financial crises is available or not?

Now the second question is arise about the norms which are applicable for consideration of the application for compassionate appointment. It is submitted by the applicant’s counsel that the norms prevailing upon the death of the employee should be applicable. On the other side, the respondents’ counsel submitted that the norms prevailing upon the date of consideration should be applicable.

In view of the Full Bench judgments of M.P. High Court reported in Bank of Maharashtra and another vs. Manoj Kumar Deharia and another 2010 (3) mPLJ (FB) 213 and State of M.P. and others vs. Laxman Prasad Raikwar 2018 (4) MPLJ 657, the policy which was applicable at the time of consideration of the case, will be applicable and not the policy which was in vogue at the time of death of employee or the time when an application was submitted. No doubt, this question as to which policy will be applicable, is referred for consideration to a Larger Bench by Hon’ble Supreme Court in State Bank of India and others vs. Sheo Shankar Tiwari 2019 (5) SCC 600.

Recently, the Hon’ble Supreme Court in the case of State of Karnataka vs. V. Somayashree (2021) 12 SCC 20 = 2021 SCC online SC 704 had an occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of the Supreme Court in N.C. Santosh vs. State of Karnataka, (2020) 7 SCC 617, the Supreme Court summarized the principle governing the grant of appointment on compassionate ground as under:-

10.1 That the compassionate appointment is an exception to the general rule;

10.2 That no aspirant has a right to compassionate appointment;

10.3 The appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;

10.4 Appointment on compassionate ground can be made only on fulfilling the norms laid down by the State’s policy and/or satisfaction of the eligibility criteria as per the policy;

10.5 The norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.

The aforesaid judgment of the Supreme Court has been followed in the State of Uttar Pradesh and Ors. vs. Prem Lata (2022) 1 SCC 30 and State of Maharashtra and Anr. vs. Smt. Madhuri Maruti Vidhate, AIR 2022 SC 5176= AIR online 2022 S.C. 471 (dt. 30.09.22) and Fertilizers and Chemicals Travancore Ltd. &Ors. Vs. Anusree K.B., AIR 2022 SC 4766 = AIR online 2022 SC 343 (dt. 30.09.2022). Therefore, the norms prevailing on the date of consideration of the application should be the basis of consideration of the claim of compassionate appointment.

Therefore, it is clear that the norms prevailing on the date of consideration of the application should be the basis of consideration of the claim of compassionate appointment. The respondents did not commit any mistake by applying the norm prevailing on the date of consideration.

In this case, the terminal benefits have been considered in the impugned order. In the case of Union of India vs. Shashank Goswami AIR 2012 SC 2294 refusal of claim of compassionate appointment upon the basis of getting the terminal benefits exceeding 3 Lakhs, was held justified. The court refers the Govind Prakash Verma vs. Ashwani Kumar Tanya (2004) 7 SCC 365 = AIR 2004 SC 4155 in which while dealing similar issue i.e. “whether payment of terminal/retiral benefits to the family can be taken to consideration?” held as under:-

“In our view, it was holly irrelevant for the departmental authorities ……. to take into consideration the amount which was being paid as family pension to the widow of the deceased ….. and other amounts paid on account of terminal benefits under the Rules

.………….. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amount admissible under the Rules.”

After mentioning the aforesaid case the court said that:-

“In Mumtaz Yunus Mulani (Smt.) v. State of Maharashtra and Ors., (2008) 11 SCC 384 : (AIR 2008 SC (Supp) 305, this Court examined the scope of employment on compassionate ground in a similar scheme making the dependant of an employee ineligible for the post in case the family receives terminal/retiral benefits above the ceiling limit and held that the judgment in Govind Prakash (supra) had been decided without considering earlier judgments which were binding on the Bench. The court further held that the appointment has to be made considering the terms of the scheme and in case the scheme lays down a criterion that if the family of the deceased employee gets a particular amount as retiral/terminal benefits, dependent of the deceased employee would not be eligible for employment on compassionate grounds.”

Therefore, the department/respondents rightly considered the amount of termination benefit granted to the family of the deceased. It is also to be noted that only about 2 and ½ years of service was left. The maximum period was served by the deceased employee.

It is orally argued by the applicant’s counsel if the vacancies are not available or the waiting list candidate could not get the appointment then his name should also be forwarded to the other zones. For this purpose, he place the reliance upon the OM dated 09.10.1998 and also OM No.14014/19/2002 dated 05.05.2003.

The answer is available in the pleadings of the respondents. In para-5 of the Counter Affidavit at Page-14, the respondents mentioned the entire procedure adopted for the compilation of vacancies which says:-

“5. That after receiving the merit list from the Board of Officers, the same is forwarded to Integrated HQ of MoD (Army), New Dellhi for inclusion in combined merit list in terms of Integrated HQ of MoD (Army) letter No. A/23802/1/Policy/OS-8C (i) dated 10.01.2006. Since, limited number of vacancies are released under the ADRP Scheme by Ministry of Defence and these are further allotted to Command Headquarters/Depots on pro rata basis, there is every possibility that a candidate who obtain lesser marks under 100 points scaling System in one Command is recommended for appointment whereas a candidate who has obtained higher marks in other command is not recommended and hence in order to avoid this anomaly, on receipt of merit lists from all the Commands/Central Depots situated in various parts of India, Integrated HQ of MoD (Army), New Delhi draw a combine merit list of the candidates of all commands/depots through a Board of Officers and issue sanction letter as per merit after obtaining necessary documents from the concerned Depot/Units depending upon the availability of group ‘C’ & ‘D’ vacanciesfor the purpose of compassionate appointment. Photostat coy of the integrated HQ of MoD (Army), New Delhi letters No.A/23802/1/Policy/OS-8C (i) dated 10th January 2006 is annexed herewith and marked as AnnexureCA-4.”

The other details are also mentioned in support of the order Annexure A-1 in Para-7 of the pleadings of respondents. The details about the consideration are mentioned in the aforesaid paras clearly. In Para-7, the respondent says:-

“7. That in terms of Government letter dated 16.05.2001, year wise wastage vacancies of AOC were referred to Ministry of Defence by the Integrated HÌ of MoD (Army) for its screening by the Screening Board and after receiving vacancies duly screened, 5% year-wise vacancies were earmarked for appointment on Compassionate Grounds. Since the backlog vacancies for the year 2005-06, 2006-07, 2007-08 and 2008-09 were received duly screened in the month of March 2010, the Board of Officers held at Integrated HQ of MoD (Army) on 30.03.2010 drew the combine merit list of the candidates against each vacancy year separately. As per Page No.17 separate combine merit list for the year 2005-06 to 2008-09 finalized on 30.03.2010, the candidates, whose cases were to be considered for the first time as fresh against the vacancy for the year 2005-06, were considered first time against the vacancy year 2005 06 and in case of rejection against the vacancies for the year 2005-06 due to low in the merit list, their names were considered again against the vacancy for year 2006-07 for second time and in case their names were rejected second time against the vacancy for the year 2006-07, their names again considered third time against the vacancy of year 2007-08 and in case of third rejection, their cases had been finally rejected. Accordingly, on receipt of backlog 29 vacancies for Group C' post for the year 2007-08 and 40 vacancies for the year 2008-09 from Ministry of Defence the Board of Officers held at Integrated HÌ of MoD (Arny) on 30.03.2010 considered the case of the applicant No.2 giving first chance against the 29 vacancies for the year 2007-08 and second chance against the 40 vacancies for the year 2008-09 and drew the combine merit centrally amongst 152 and 123 candidates respectively in the light of Ministry of Defence letter dated 09th March 2001 circulated under Integrated Headquarter of MoD (Army) letter No. A/23802/Policy/OS-8C(i) dated 16th March 2001 but he could not be selected for employment on the basis of criteria laid down to determine the relative hardship in the face of more deserving candidates and limited number of vacancies. The name of the applicant No.2 appeared at S. No. 139 out of 152 eligible candidates in the combined merit of first Board against the vacancies for the year 2007 08 and SI. No. 10 put of 123 eligible candidates in the combined merit of second Board against the vacancies for the year 2008-09 respectively. The candidates who secured highest points up to the quantum of existing vacancies t ete selected and the remaining candidates were treated are rejected The merit position of the applicant was intimated to the candidate accordingly vide COD Chheoki letter No. 181453/ बी0/फायर मासटर/शशबबनदी (औ0) dated 07.09.2010. Simultaneously, he was intimated that on receipt of ADRP vacancy, his case will be considered again denovo by the ensuing Board of Officers for third time as per existing rules. Photostat copy of the COD Chheoki letter are No. 181453/ बी0/फायर मासटर/शशबबनदी (औ0) dated 07.09.2010 is annexed herewith and marked as Annexure CA-5.”

The valuation of the applicant in the light of prescribed norms is mentioned in the impugned order itself and in Para-6 of the pleadings, the respondents also mentioned the aforesaid details again.

Therefore, it appears that the claim of the applicant was considered for the subsequent three years. It is strongly argued by the counsel for the applicant that the claim of the applicant could not be considered for the year before the death of the deceased employee.

In view of this court, the aforesaid argument cannot be accepted. The revised consolidated instruction on the scheme of compassionate appointment circulated by G.I. Department of Personnel and Training OM dated 09.10.1998 is relevant for this purpose. In Rules-7 and 8, it is mentioned that:-

“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 upto a maximum of 5% of vacancies falling under direct recruitment quota in any Group 'C' or 'D' post. The appointing authority may hold back upto 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 grounds should be adjusted in the recruitment roster against the appropriate category viz SC/ST/ OBC/General depending upon the category to which he belongs. For example, if he belongs to SC category he will be adjusted against the SC reservation point, if he will be adjusted against ST/OBC point and if he belongs to General category he will be adjusted against the vacancy point 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/ad-hoc/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 utilising 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 anywhere 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/Departments/Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list.

Belated requests for Compassionate Appointment

(a) Ministries/Departments can consider requests for compassionate appointment even where the death or retirement on medical grounds of a Government servant took. place long back, say five years or so. While considering such belated requests it should, however, be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the Government servant in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. Therefore, examination of such cases would call for a great deal of circumspection. The decision to make appointment on compassionate grounds in such eases may, therefore, be taken only at the level of the Secretary of the Department/Ministry concerned.

(b) Whether a request for compassionate appointment is belated or not may be decided with reference to the date of death or retirement on medical ground of a Government servant and not the age of the applicant at the time of consideration.”

For the same purpose, OM No.14014/19/2002 dated 05.05.2003 is also relevant, which says:-

“ Copy of O.M.No.14014/19/2002-Estt(D) dated 5.5.2003 from Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training

Subject: Time-limit for making compassionate appointment

The undersigned is directed to refer to Department of Personnel & Training OM No.14014/6/94-Estt(D) dated October 9, 1998 and OM No.14014/23/99-Estt(D) dated December 3, 1999 on the above subject and to say that the question of prescribing a time limit for making appointment on compassionate grounds has been examined in the light of representations received, stating that the one year limit prescribed for grant of compassionate appointment is often resulting in depriving genuine cases seeking compassionate appointments, on account of regular vacancies not being available, within the prescribed period of one year and within the prescribed ceiling of 5% of direct recruitment quota.

It has therefore been decided that if compassionate appointments to genuine and deserving cases, as per the guidelines contained in the above OMs is not possible in the first year due to non-availability of regular vacancy, 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 for compassionate appointment by the Committee, subject to availability of a clear vacancy within the 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.

The maximum time a person’s name can be kept under consideration for offering Compassionate appointment will be three years, subject to the condition that the prescribed Committee has reviewed and certified the penurious condition of the applicant at the end of the first and the second year. After three years, if compassionate appointment is not possible to be offered ot the applicant, his case will be finally closed,and will not be considered again.

The instructions contained in the above-mentioned OMs 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. “

Therefore, looking to the aforesaid provision and the rules, it appears that the claim of the applicant was required to be considered for the vacancies of three years. Nowhere it is provided that the vacancy should arise only after the death of the deceased employee. The vacancies may be carried forward for three years. If the vacancies are available (5% for compassionate appointment) then the selection for the aforesaid vacancies should be made in chronological order. At the time of consideration of the application, the vacancies available should be filled. It is not relevant that the vacancies are related to which year. The oldest vacancies should be filled on a priority basis. Therefore, the case of the applicant has rightly been considered for the vacancies related to three years and was available at the time of consideration of the application.

In the aforesaid situation, in view of this court the OA is liable to be dismissed. The respondents rightly rejected the claim of the applicant. Hence, OA is dismissed.

No order as to costs.