ORDER
A. Gopal Reddy, J.
1. In this case the petitioner seeks a rule from this Court asking the respondent to show cause why a Writ in the nature of Certiorari should not be issued under Article 226 of the Constitution of India calling for records relating to the impugned letter of the joint Director (P and A); Oil and Natural Gas Commission dated 17-11-1993 as communicated and questioning the said proceedings as the same offends Articles 14 and 21 of the Constitution of India and for a consequential direction to the respondents to reconsider the case of the petitioner for employment as a special case.
2. The petitioner’s husband was appointed as Executive Engineer (Production) in the 1st respondent -Commission on 13-1-1982. While he was working as such on Gas Processing Plant. Hazira Project, Surat, he was bed ridden in 1990 and passed away on 17-10-1990. As the petitioner’s husband was only the earning member and he left a son aged 8 years and aged mother who are depending on him, the petitioner sought for appointment on compassionate grounds. The application was forwarded by the Group General Manager to the head quarters by letter dated 25-2-1991 and the petitioner has also made a representation dated 14-3-1991 to the Chairman requesting him to provide employment which she desperately was in need to maintain the minor son and old aged mother-in-law. In response to the above letter the respondent organization sent a sum of Rs. 55,000/- In lieu of compassionate appointment and expressed their inability to give appointment due to over-age. Therefore she made another representation on 4-7-1991 stating that the financial assistance of Rs. 55,000/- cannot be a substitute for providing appointment and she also stated her pension was not settled and requested to intervene in the matter. She also returned the financial assistance provided through her letter dated 16-9-1991. Ultimately the authorities by the impugned order dated 17-11-1993 informed the petitioner that her request for employment as assistant has not been acceded to by the competent authority in view of the following reasons:
“(i) Late Sri G. Subramaniam had not rendered minimum required service of ten years before his death;
(ii) A large number of cases of dependents of deceased employees including cases of trainees engaged with job assistance, are pending where ONGC is not in a position to provide employment assistance for want of vacancies;
(iii) The case of Smt. G.V. Ramana is no doubt pathetic but if it is given special consideration, it may be difficult to justify not giving similar treatment to other similar cases which are even more compassionate and pathetic”
and the petitioner was advised to accept the amount of financial assistance in lieu of employment as it will not be possible to give employment assistance and delay in accepting financial assistance will not be in her interest. The same was forwarded to the petitioner through proceedings dated 2-12-1993. Questioning the same the present writ petition was filed stating that rejection of the petitioner’s request for employment assistance on compassionate grounds is arbitrary, illegal and offends Article 14 of the Constitution of India.
3. Learned Counsel for the petitioner contends that when once the Commission provides employment assistance, clause envisaged in para 3 (a) of the Scheme that the deceased should have served for 10 years is arbitrary and illegal and is discriminatory. Providing financial assistance cannot be a substitute to employment on compassionate grounds and the respondents have failed to observe that the case of the petitioner cannot be equated with others and she is in dire need of employment to maintain the minor child and old aged mother-in-law. Therefore rejection order issued through letter dated 2-12-1993 is void and unsustainable.
4. In opposition of the same the respondents filed a counter stating that the deceased was governed by the provisions of the circular which provides for financial assistance in lieu of gainful employment to one of the dependents of the deceased employee and the deceased employee put in less than 10 years of service and therefore his dependents are not entitled to any compassionate appointment. Only financial assistance of Rs. 85,000/- in lieu of gainful employment is provided under the scheme. In the absence of any scheme to provide such employment, the petitioner cannot claim the same as a matter of right. As regards the settlement of pension is concerned, as per ONGC Self Contributory Post Retirement and Death in Service Benefit Rules, 1991 an employee has to contribute for a minimum period of 10 years a fixed percentage of salary depending upon his age bracket from the effective date of scheme and therefore the deceased employee was not entitled to any benefit of pension or assistance under the said benefit scheme. Notwithstanding the same, the respondents have requested the Trustees of the said Benefit Scheme to consider the case of the deceased employee’s dependents sympathetically and the decision of the said Trustees is awaited.
5. The learned Counsel for the petitioner urged that the condition namely Clause 3 (a) which prescribes that a deceased/disabled employee has to serve the Commission for a minimum period of 10 years is arbitrary and discriminatory and when the scheme provides for compassionate appointment rejection of the petitioner’s case for compassionate appointment and financial assistance in lieu thereof is violative of Article 21 of the Constitution and when once the scheme provides for compassionate appointment irrespective of the service rendered by the deceased, the authorities are bound to consider the case of the dependent for such appointment and in support of the same he placed reliance on a judgment of this Court in Eluri Marthamma v. Divisional Railway Manager, S.C. Railway, Vijayawada Division and Balbir Kaur v. Steel Authority of India Limited AIR 2000 SC 1596.
6. On the other hand, the learned counsel for the respondent -Commission submitted that the scheme which provides compassionate appointment through office memorandum dated 20-7-1987 prescribes only financial assistance to the family who put in less than 10 years of service. Compassionate appointment can be claimed only when the deceased has served the Commission for a minimum period of 10 years, that too where the vacancies are available for such compassionate appointment and it is sole discretion of the Commission to give financial assistance in a lumpsum amount or consider the case of o the dependent for gainful employment subject to the conditions mentioned in the scheme. As the petitioner is not entitled to compassionate appointment, her case was rejected and she was offered financial assistance of Rs. 85,000/- Except that the petitioner is not entitled to any other benefit. In order to appreciate the rival contentions, it is beneficial to incorporate the relevant clauses in the scheme under memo dated 20-7-1987:
“2. Assistance:
In the event of death during service in the Commission or permanent total disability while on duty in service of the Commission, the Commission may, for rehabilitation of the family of such employee, who leaves his family in indigence and acute financial distress, make lump sum payment to the following extent in lieu of any employment assistance:
______________________________________________________________________
Admissibility of lump sum amount on the basis of years
of service left to be rendered in the Commission by
Category of deceased employee and whether employment is not
Employees provided to the dependent
______________________________________________________________________
Below 10 years From 10 years Above 20 years
To 20 years
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Class IV 30,000/- 25,000/- 20,000/-
Class III 45,000/- 37,000/- 30,000/- E.O. 60,000/- 50,000/- 45,000/- E.1 to E.4 90,000/- 70,000/- 55,000/- E.5 and above 1,20,000/- 1,00,000/- 80,000/- _______________________________________________________________________ 2.2. The above assistance will also completely absolve the Commission of any obligation to provide employment on compassionate grounds to the spouse or dependent of the employee, under the existing scheme. 2.3. The lump sum payment under para 2 above is payable subject to the following conditions: (i) the case should be covered under this scheme (ii) the lump sum may also apply in such cases where the spouse or dependent may be eligible for employment and possess prescribed qualifications/ experience but the Commission instead decides to offer lump sum financial assistance; (iii) in case of total disablement such payments will be admissible only when the employee cases to be on the rolls of the Commission.
3. The Commission may, subject to availability of vacancies, consider employment of the dependent family member of the employee, subject to his possessing the prescribed qualifications, experience and age requirements and fulfillment of the above requirements, provided that:–
(a) the deceased/disabled employee has served the commission for a minimum period of 10 years;
(d) no additional post is required to be created and employment of such a dependent will be in the productive sphere;
(i) employment to a dependent will be considered against an existing vacancy only at induction level and not at the intermediate promotional levels.
3. It is the sole discretion of the commission to give financial assistance of lump sum amount specified above or consider the dependent for gainful employment subject to the above conditions, but not both”
7. It is not in dispute that the deceased served in the Commission only for a period of eight and half years and the petitioner was offered a lump sum payment of Rs. 85,000/- under the provisions of the scheme apart from other benefits which she is entitled as mentioned in para 6 of the counter affidavit. The petitioner who is insisting on compassionate appointment has not accepted the financial assistance under the scheme. It is not in dispute that the object of appointment is only to enable the penurious family of the deceased employee to tide over the sudden financial crises and not to provide employment. His mere death does not entitle his family to compassionate appointment unless the scheme or rules and regulations as the case may be provides the same as held by the Supreme Court in Umesh Kumar Nagpal v. State of Haryana. .The contention of the petitioner that once compassionate appointment is provided under the scheme, restricting the same to the persons who have competed 10 years of service is discriminatory cannot be accepted in view of the law declared by the apex Court in West Bengal State Electricity Board v. Samir K. Sarkar It is also not in dispute that compassionate appointment will be provided only against an existing vacancy at the induction level as Clause 3(d) specifically prohibits creation of additional post and employment of such dependent in the said post. In view of the same, the respondent – Commission rejected the claim of the petitioner for compassionate appointment as no vacancies are available. It is equally well settled proposition of law that compassionate employment can be provided only in a vacancy, but in the absence of any vacancy it is not open to appoint a person on compassionate grounds. This Court in exercise of the writ jurisdiction cannot compel the authorities to violate the scheme and direct for appointment of the petitioner on compassionate ground.
8. Viewed from any angle the petitioner is not entitled to compassionate appointment as claimed by her. The decisions relied on by the learned Counsel for the petitioner have no application to the facts of the present case. As the respondent – Commission has accepted in its counter that they have recommended the case of the petitioner to the Trustees for sanction of pensionary benefits and the decision is awaited, as and when the Trustees accept the case of the petitioner, the pension shall be released subject to the conditions incorporated by the Trustees in that regard. In view of the rejection of the petitioner’s case for compassionate appointment, she is entitled to receive financial assistance Rs. 85,000/- offered by the Commission. The commission is directed to release the said amount by considering whether any interest is payable on the said amount, in case the amount is deposited in a Bank.
9. The Writ petition is accordingly disposed of.