1-3 1] D.B. CIVIL WRIT PETITION NO.5916/2006 [ICAR & ANR. VS. SMT. SUMATI & ANR.] 2] D.B. CIVIL WRIT PETITION NO 5917/2006 [ICAR & ANR. VS. NEMA RAM & ANR.] 3] D.B. CIVIL WRIT PETITION NO 5918/2006 [ICAR & ANR. VS. NARAIN LAL & ANR.] Date:- 13.08.2007 HON'BLE MR. RAJESH BALIA,J. HON'BLE MR. MAHESH CHANDRA SHARMA,J. Mr. Ashok Chhangani, for the petitioner. Mr. Vijay Mehta, for the respondents. We have heard learned counsel for the parties. These three petitions are directed against the order of Central Administrative Tribunal, Jodhpur Bench Jodhpur dated 28.04.2006 deciding five original applications regarding their claims to appointment on compassionate ground as all the applicants before the Tribunal were dependent of regular employees of the petitioners who had died in harness. In each case the ground for not giving appointment was that in last four years, no vacancy has occurred against which appointment could be offered to such persons on compassionate ground. There is no dispute about the fact that only five percent of total vacancies occurring to be filled from direct recruitment are available for appointment on compassionate ground. But in last four years no vacancies against the direct recruitment quota were available against, which the applicants case could be considered. The Tribunal has also found that in view of the decision of Supreme Court in Himachal Road Transport Corporation Vs. Dinesh Kumar 1996 SC 2226 the law must be taken fairly settled that in the absence of the vacancy, it is not open to the corporation to appoint a person on any post. It will be gross abuse of the powers of the public authority to appoint persons against vacancies which are not available. If persons are so appointed and are paid salary, it will be mere abuse of public funds which is totally unauthorised. Thus, even according to Tribunal's findings at the relevant time the case of each of the respondent- applicants was not liable to be considered in terms of the scheme framed for offering appointment on compassionate ground, in case any permanent employee were to die in harness. However, relying on the Tribunal's earlier decision in the matters of two causal employees to whom the scheme for giving, the compassionate appointment to dependents of permanent employees dying while in services was not applicable, but were governed by a specific office memorandum regulating the case of deceased TS casual labour. In said case, the Tribunal had given directions to give appointment to the widow of deceased casual labour as a casual labour. The Tribunal found that this classification being unreasonable cannot be allowed to stand in the way of the respondents-petitioners for consideration and being appointed at least as a casual labour on compassionate ground. The respondents have taken a clear stand that there being no vacancy for offering appointment under the scheme applicable to permanent employees dying while in service and the case of respective applicants under consideration shall be considered as and when such vacancies are available. However, their case cannot be considered for casual appointment on compassionate ground. We are of the opinion that there exist a reasonable nexus with the object sought to be achieved in differentiating the case of persons seeking appointment on compassionate ground falling in the two categories referred to above. Permanent employment under the petitioner carry definite retrial benefits to which the family of the deceased becomes entitled and cannot be said that the family is as unprovided as in the case of casual labour who is appointed on daily wages and has no right to get retrial benefits. Therefore, if the persons who are better placed amongst the weaker section of the society are not allowed to share a cake with the others who have totally been unprovided for in case of such casualty and would be deprived the minimum support which they needed most. However, this cannot be held that if otherwise, casual labour is required to be engaged by the employer and the respondent-applicants offer themselves against such vacancies, their case cannot be considered. In such eventuality their case is also likely to be considered in ordinary course against others. In these circumstances, these petitions are disposed of with modified directions that while their cases are under consideration for being offered regular appointment on compassionate ground as they are the dependents of deceased employee of the petitioners, as and when the vacancies which are reserved to be offered on compassionate ground is available, their cases may be considered for entitlement on casual basis if they offer themselves for such employments. Their cases must be considered for such employment in regular course, but not on the basis of priority on compassionate ground. (MAHESH CHANDRA SHARMA),J. (RAJESH BALIA),J. arti