IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 3997 of 2004
Nand Kishore Sharma..................... Petitioner
Versus
Union of India & Ors..................... Respondents
......
Coram: The Hon'ble Mr. Justice Amareshwar Sahay
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For the petitioner : Mrs. M.M.Pal, Advocate
For the Respondents : Mr. Faiz-ur-Rahman, C.G.C.
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7/07.01.2009
Heard the learned counsel for the parties and with their
consent this writ application is being disposed of at this stage itself.
The petitioner has filed this writ application for quashing of
the orders dated 17/12/2003 and 01/03/2004, contained in
Annexure- 3 and 5 respectively, passed by the Assistant Inspector
General, CISF, Patna, rejecting the claim of the petitioner for
appointment on compassionate ground on the ground that there is no
post vacant for appointment on compassionate ground.
The father of the petitioner namely, Ambika Sharma was
employed as Carpenter in CISF and was posted at Bokaro. He died
prematurely on 25/09/2001 at the age of 44 years during his service
period. The petitioner, being the eldest son, made a representation
before the Chief Inspector General, CISF, requesting for his
appointment on compassionate ground stating that his father was the
only bread earner of his family and he died leaving behind his wife, two
sons and three daughters and no one in the family is employed.
According to the petitioner, though his case was considered for
appointment on the post of Constable but he was declared unfit as his
height was found short than the required minimum height for the post
of Constable. Subsequently, by order dated 26/04/2003, he was
directed to appear for physical test for his appointment to the post of
Peon. He was declared fit and then was directed to appear before the
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Divisional Headquarter at Patna for his medical test on 29/04/2003
but at Patna he was informed that his name was not in the merit list
and, accordingly, he was directed to apply again for the post of Peon.
His case was again considered for appointment to the post of Peon but
as it appears that though he was found fully fit for the post of Peon but
his case was rejected on 17/12/2003 by issue of Annexure-3 on the
ground of non-availability of the post. The petitioner also states that the
Deputy Inspector by issue of Annexure-4, addressed to the
Commandant, recommended the case of the petitioner for his
appointment on compassionate ground but again by order dated 1-
2/03/2004, contained in Annexure-5, the claim of the petitioner was
rejected on the ground of non-availability of the post.
The petitioner alleges that at one hand the case of the
petitioner for appointment on compassionate ground has been rejected
on the ground of non-availability of the post but on the other hand the
respondents have provided employment on compassionate ground to
other candidates on the basis of the selection made on 03/08/2003.
The names of those persons have been stated in Paragraph-19 of the
writ petition. Accordingly, it is submitted that the action of the
respondents are discriminative, unfair and unjustified.
A counter affidavit has been filed by the respondents,
wherein it has been stated that the case of the petitioner for
appointment to the post of Constable was rejected as he could not
qualify due to under height and his case for appointment on the post of
Peon could not be considered due to non-availability of the vacancy and
now since more than three years have already been completed and,
therefore, the case of the petitioner cannot be considered. So far as the
allegation made by the petitioner regarding discrimination is concerned,
in Para-27 of the counter affidavit, it has been stated that those
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persons, whose name are found at Sl. Nos. (i) to (iv) in para-19 of the
writ petition, have not been recruited by the CISF. So far as Sl. Nos. (v)
to (viii) are concerned, it is stated that their names appeared in the
merit list and, therefore, they were appointed on compassionate
ground.
Mrs. Pal, learned counsel appearing for the petitioner by
referring to the revised Scheme for compassionate appointment issued
by the Government of India, which have been annexed by the
respondents in their counter affidavit as Annexure-A, submitted that
there is provision for relaxation of the eligibility criteria for appointment
on compassionate ground. Scheme No. 7 speaks about the
determination/availability of vacancies. Sub-clause (f) of Scheme- 7
speaks that 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/Department/Officers
of the government of India to provide at an early date appointment on
compassionate grounds to those in the waiting list.
Mrs. Pal further submitted that no waiting list was
prepared by the respondents concerned pursuant to the Scheme 7 (f)
and if waiting list would have been prepared the case of the petitioner
could have been considered for future appointment.
Scheme-7 reads as under:-
“7. DETERMINATION/AVAILABILITY OF VACANCIES
(a)…..
(b)….
(c)…..
(d)…….
(e)……..
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(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/Department/Officers of the government of
India to provide at an early date appointment on
compassionate grounds to those in the waiting list.”
After hearing the parties at length, I find that the
respondents have not considered the case of the petitioner in the light
of the revised Scheme for appointment on compassionate ground,
which has been annexed as Annexure-A to the counter affidavit. I also
find that the claim of the petitioner has only been rejected on the
ground of non-availability of the post. The respondent authorities aught
to have considered the case of the petitioner in the light of the Scheme
7 (f) as already quoted herein above. The matter requires to be
reconsidered.
In view of the discussions and findings above, this writ
application is allowed. The orders dated 17/12/2003 and 01/03/2004
as contained in Annexure-3 and 5 respectively, are hereby quashed and
the concerned respondent is directed to consider the case of the
petitioner afresh in the light of the Scheme for appointment on
compassionate ground in its right perspective and take a decision in
accordance with law within a period of eight weeks from the date of
receipt/ production of copy of this order.
(Amareshwar Sahay, J)
Mukund/-