JUDGMENT
Vijender Jain, J.
1. Rule.
2. This writ petition has been filed by the petitioner aggrieved by the change of policy of wait listing on compassionate ground. The case of the petitioner is that the husband of the petitioner, who was an employee of the respondent, died on 24.4.1996. The petitioner applied for compassionate appointment on 16.8.1996. The petitioner’s application for compassionate appointment was entertained by the respondent and same was approved on 31.10.1996. At page 32 of the paper-book is the Office Memorandum of the respondent. The same is reproduced below :
“Office of Chief Engineer (New Delhi Region)-2
Central Public Works Department
No. 25/21/96-Construction-1(A) Dated : 31.10.1996
OFFICE MEMORANDUM
Sub :- Appointment of Smt. Meena on Compassionate
Grounds.
———
Ref:-
In exercise of powers of Head of Department as per Ministry of Urban Development Memorandum No. 170(1)/79-EW.01 dated 5.6.79 declaring the Chief Engineer as Head of Department of his Region and in exercise of powers conferred to the Head of Department under Ministry of Home Affairs Memorandum No. 14/14/66-Estt.(D) dated 8.8.66 and Department of Personnel and Admn. Reforms, New Delhi Memorandum No. 14014/1/77-Estt(D) dated 25.11.78 and Deptt. Of Personnel & Training Office Memorandum No. 14014/6/86-Estt.(D) dated 30.6.87, the approval of Chief Engineer (NDR. 2) is granted for exemption in the recruitment process through employment exchange and for appointment on compassionate grounds in the office as Beldar to Smt. Meena, wife of late Shri Jagdish. Relaxation in educational qualification and age limit are also granted.
2. The appointment be made against the direct recruit existing vacancy.
3. The terms of appointment are that Smt.
(a) should be medically fit.
(b) should fulfill rules of recruitment.
(c) otherwise found eligible and suitable for the post.
4. She will remain on two years probation from the date of appointment.
Sd/-
Section Officer
for Chief Engineer (NDR. 2)”
3. The petitioner waited for the appointment in terms of the appointment given to the petitioner on 31.10.1996. However, the respondent communicated to the petitioner that the name of the petitioner was appearing for appointment on compassionate ground and her serial number in the waiting list was 18 and 8 candidates have been given appointment as per rules and the case of the petitioner shall be considered as per the seniority maintained by the respondent. To the utter surprise of the petitioner, the petitioner received a letter from the respondent that though the name of the petitioner was shown in the waiting list for compassionate ground at serial No. 5 which was formulated on the basis of first-come-first-serve, however, thereafter another policy has been formulated where the seniority is to be assigned from the date of death of the government servant and not on the basis of the date of application and, therefore, the name of the petitioner on the basis of the changed criterion was placed at serial No. 55. Mr. Aneja, learned counsel for the petitioner has contended that this changed policy was without hearing and without any notice to the petitioner. It was also contended that as a matter of fact the petitioner’s appointment in principle was accepted on 31.10.1996, however, she had to wait on account of some wait list which was in vogue at that time and the petitioner went up to the ladder in the said waiting list and her number was five in January, 2000. Thereafter, change of criteria and pushing the petitioner back to serial No. 55 in the waiting list is whimsical, arbitrary and without any basis. It was also contended that policy on compassionate appointment has to take into consideration the problem and hardship faced by the dependants of the deceased at the time of his death and there has to be a nexus between the date of death and the need of the family members for compassionate appointment and, therefore, the urgency on the part of the dependant members of the family in moving application cannot be given a go bye by the respondent.
4. On the other hand, counsel for the respondent has contended that this Court has no jurisdiction as the respondents are Central Public Works Department and the appropriate forum would be Central Administrative Tribunal. It was contended by counsel for the respondent that it was for the respondent to formulate its policy in the respondent departments, the policy has taken into consideration the date of death as the starting point for preparing a wait list, whereas in some other departments it is the date of the application and still in some other departments it was date of approval of the competent authority and to make a uniform policy date of death was taken as a starting point for making the wait list. It was further contended by counsel for the respondent that this Court while exercising power under Article 226 of the Constitution of India will not strike the policy framed by the respondent. In the alternative it was contended that if this Court comes to a conclusion to strike the policy the same be prospective in nature.
5. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. At the outset the arguments raised by counsel for the respondent that this court has no jurisdiction is without any basis. The petitioner is not yet a government servant. Petitioner has not been given employment. Therefore, Central Administrative Tribunal will have no jurisdiction to entertain any application of the petitioner and the only course and remedy with the petitioner was to invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India.
6. I find force in the argument of counsel for the petitioner that petitioner having applied on 16.8.1996 and had waited for more than four years after her appointment having been approved by the competent authority on 31.10.1996 and when she was on the verge of appointment, in January, 2000 when on the waiting list her serial number was 5, the policy on compassionate appointment was changed without any justification. The respondent has filed the list of wait-listed persons prepared on the basis of the latest guidelines which is at page 79 of the paper-book. From the perusal of the said list more than 30 applicants who have filed their applications for compassionate appointment later than the petitioner have become senior to the petitioner. Compassionate appointment is not a matter of right. Compassionate appointment is given by the employer in order to tide over the economic hardship which a family has to face after the death of the government servant. Time factor and economic hardship and urgency on the part of the dependant members of the deceased all are relevant factors which have to be taken into consideration by the respondent. A policy which is not based on these considerations like the one before hand is whimsical. At serial No. 10 is a person Data Ram who made application on 24.6.1999 while the government servant died on 4.1.1995. When there was no urgency on the part of the depandant member of the family how that person requires a compassionate appointment has to be judged from the factors whether there is sufficient income in the hands of the family members of the deceased to look after themselves, whether there is any property owned by them, whether there are other sources of income. A policy which does not take these factors into consideration is totally whimsical and irrational. I quash the parameters laid down by the respondent in making the waiting list on compassionate ground and direct the respondent to frame a policy keeping in view what has been stated above. The result would be that the petitioner would be entitled for appointment counting her seniority from January, 2000 at serial No. 5 and making a list on the basis of guidelines issued by this Court.
7. Writ petition stands disposed of accordingly. Rule is made absolute.