ORDER
Neena Ranjan, Member (A)
1. By virtue of this OA, applicant seeks the following reliefs:
i) direct the respondents to consider and to grant the appointment to applicant on compassionate ground at an early date;
ii) direct the respondents to consider the case of applicant for relaxing the rules irrespective of age and education qualification for her appointment for compassionate ground, if necessary.
2. The brief facts are that applicant, a widow of late Group ‘D’ (Safaiwala) employee in Akashwani & Doordarshan, who died in harness on 26.03.2005. She submitted application in April 2006 for appointment on compassionate ground and consequential benefits as per rules from time to time immediately after the death of deceased employee. When husband of applicant died he left behind his widow and seven children with no other source of livelihood except his income.
3. Shri Yogesh Sharma, learned Counsel for applicant submitted that the case of applicant was forwarded to Respondent No. 2 for consideration for granting of appointment on compassionate grounds in February 2006 and also 03.08.2006, but till date no final decision has been taken. The entire delay on part of respondents on the case of applicant without reasonable grounds is illegal and arbitrary.
4 Shri Vikrant Yadav, learned Counsel for respondents, at the outset, submitted that as per instruction contained in DOP&T OM dated 09.10.98, compassionate appointment can be made up to a maximum of 5% vacancies falling under direct recruitment quota in any group ‘C’ & ‘D’ post. However, at present, there is no vacancy available under 5% quota in Delhi Zone. The compassionate appointment scheme is applicable to a dependent family member of a Government servant who dies in harness or is retired on medical grounds under Rule 2 of CCS (Medical Examination) Rules, 1957. The scheme for compassionate appointment circulated by Department of Personnel and Training (DOP&T) vide O.M. dated 09.10.1998, inter alia, provides that on requests for appointment on compassionate grounds, a balanced and objective assessment of the financial condition of the family has to be made, taking in to account its assets and liabilities and other relevant factors. As per recent guidelines of compassionate appointment is to be made in cases of destitution. It is further submitted that the limit of 5% of the direct recruitment vacancies on compassionate appointment has been fixed in pursuance of order of Apex Court in the case of U.K. Nagpal v. State of Haryana and Ors. dated 04.05.1994, wherein Hon’ble Supreme Court has held as follows:
As a rule appointment in public service should be made strictly on the basis of open invitation of applications and merit and appointment on compassionate grounds is an exception to the Rule. Any such exception should, therefore, be made to the minimum possible extent say one or two percent or maximum of five percent and it is exceed, that will be no longer be an exception.
Hon’ble Apex Court has further held that the compassionate appointments cannot be granted after lapse of reasonable time as that right cannot be exercised at any time in future. The limit of 5% vacancies of Direct Recruitment quota of compassionate appointment has also been fixed in pursuant to orders of Supreme Court and appointments beyond this quota would be in violation of the Court’s order as well as the instructions issued by DOP&T vide its OM dated 24.11.2000. Besides this, in the case of Himachal Road Transport Corporation v. Dinesh Mumar dated 07.05.1996 the Supreme Court has held that appointment on compassionate grounds can be made only if a vacancy is available for that purpose.
5. Moreover, it was argued that vide OM dated 03.12.1999, it was clarified by the DOP&T that the committee to consider such requests should take into account availability of vacancies and give them to really deserving cases within a year within the 5% ceiling. Only cases fulfilling this criteria are to be approved.
6. It is thus apparent that cases of appointment on compassionate grounds are governed under a well framed scheme by Nodal Ministry and a Department has no jurisdiction or discretion to deviate from the same. Hence, appointments on compassionate grounds cannot be claimed as a matter of right.
7. The learned Counsel for respondents argued that as per rules, name of all candidates including the present applicant was entered on record and within the limit of 3 years were considered by the Screening Committee. If any vacancy arises within a year, applicant’s case will be considered.
8. I have heard both the learned Counsels of the parties and perused the record.
9. The salient features of the Scheme envisage that compassionate appointment can be made up to the 5% of vacancies falling under direct recruitment quota in any Group ‘C’ or ‘D’ post and on an objective assessment of the financial condition and the size of the family may be taken into consideration even if benefit has been taken under various welfare Schemes. The request for the applicant cannot be kept pending for a long period since she has to support seven young children and no earning member.
10. The Tribunal in its power of judicial review cannot examine the decision of the screening committee as an appellate court. The applicant had a right to be considered by a properly constituted Screening Committee and his case has been duly considered. The respondents seem to be sympathetic to claim of applicant but could not provide employment to thus far because of shortage of vacancies reserved for this purpose and priority to be given to other applicants/destitute families, on relative merits. The Tribunal cannot direct the respondents to appoint the applicant to a Group ‘C’ post but for due consideration.
11. In the case of Punjab National Bank and Ors. v. Ashwini Kumar Taneja it has been held by Supreme Court that the appointment on compassionate ground cannot be claimed as a matter of right. It was further observed that the object of providing compassionate appointment was to enable the family to get over a sudden financial crisis but such appointments are to be made in accordance with the rules, orders and administrative instructions taking into consideration the financial condition of the family:
5. As was observed in State of Haryana v. Rani Devi it need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the premises that he was dependent on the deceased employee. Strictly, this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service…. Appointment on compassionate ground cannot be claimed as a matter of right The appointment on compassionate grounds is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.
6. In Sushma Gosain v. Union of India it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment…. The above view was reiterated in Phoolwati v. Union of India and Union of India v. Bhagwan Singh. In Director of Education (Secondary) v. Pushpendra Kumar it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment.
7. In State of U.P. v. Paras Nath it was held that the purpose of providing employment to the dependant of a Government servant dying in harness in preference to any anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are rules providing for such appointments. None of these considerations can operate when the application is made after a long period of time. In that case also the delay was 17 years.
12. Applying the principles of law laid down in the above cited case, I do not find that the order of the respondents impugned in the OA warrants any interference by the Tribunal.
13. For the reason stated above, I dispose of this OA with a direction to the respondents to consider the request of the applicant for providing him appointment on compassionate ground on Group ‘D’ post in accordance with the extant orders, rules & instructions on the subject. Such consideration may be carried out by the respondents, within 4 months from the date on which the certified copy of the order is received by them. It is open to the applicant to seek his remedy against the order of the respondent in this regard, if necessary, in accordance with law. No costs.
