HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. WPSS No. 345 of 2004 Narendra Prasad & others Vs Union of India & others. Approved for reporting. __________________ Not approved for reporting Date of decision 6.3.2006 Initial of Judge 2 IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 345 (SS) OF 2004 Narendra Prasad, S/o late Ram Dayal, R/o Village Banekh, Patti- Kandarsyun, District- Pauri Garhwal. …………..Petitioner. Versus 1. Union of India, through Secretary, Ministry of Defence, New Delhi. 2. Chief Engineer, Bareilly Zone, Sarvatra Bhawan, Station Road, Bareilly Cantt. 3. Garrison Engineer (MES), Roorkee, Cantt, Roorkee, District Haridwar. ……………….Respondents. Mr. V.K. Bisht, Sr. Advocate assisted by Sri Ambarish Chatterji, Advocate for the petitioner. Learned Standing Counsel for the Central Govt. Dated: 06.03.2006 Hon’ble Rajesh Tandon, J. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 31.05.2002 and 05.02.2004 (Annexure 4 and 6 respectively) passed by the respondents no. 2 and 3 respectively. Further prayer has been made for a writ of mandamus directing the respondents to reconsider the case of the petitioner for employment on compassionate ground and to give employment suitable to his qualification. 2. Briefly, stated, father of the petitioner late Sri Ram Dayal was a Painter in G.E. Roorkee and was an employee of 3 Military Engineers Service (M.E.S.). He died on 14.03.1998. He is survived by his wife, two sons and one unmarried daughter. 3. After the death of his father, the petitioner submitted a representation before Assistant Garrison Engineer (T) M.E.S. Roorkee on 08.06.1998 for giving him appointment on compassionate ground, but of no avail. Thereafter, the petitioner and his mother sent several reminders to the respondents regarding compassionate appointment of the petitioner. The petitioner also wrote a letter to Sri B.C. Khandoori the Hon’ble Minister of State (Independent Charge), Road, Transport and High Ways, Government of India New Delhi and requested him to take necessary action in the matter. In pursuance of the request of the petitioner, Hon’ble Minister took up the matter of the petitioner and wrote to respondent no.2 about the same. Thereafter on 03.03.2001, the respondent no. 2 informed Private Secretary of the aforesaid Minister that the case of the petitioner will be considered strictly at his turn on availability of vacancy in future. 4. On 31.05.2002, after a period of four years and two months, the respondent no. 2 vide letter No. 815502/RR/126/EIC(2) rejected the claim of the petitioner for compassionate appointment on the ground of availability of few vacancies and stating that the case of the petitioner cannot be covered for employment on compassionate ground. 5. According to the submission of the petitioner, on 12.01.2004, he sent a legal notice to the respondents asking them to quash the order of rejection and appoint the petitioner on compassionate ground. On 05.02.2004, the respondent no. 2 gave reply stating that need for immediate assistance by way of compassionate employment to tide over the emergency and 4 crisis is lacking in the petitioner’s case as the death/ MBO/ Missing of the Government servant was on 14.03.1998 i.e. only 4 years ago only or 3 year (s) 8 months before his normal retirement. 6. Learned counsel for the petitioner has submitted that while rejecting the case of the petitioner for compassionate appointment, the respondents have not gone through the papers submitted and acted on mere whims and caprice showing unhelpable attitude towards the destitute, who left behind his widow minor sons and minor daughter and did not consider the fact that the petitioner is unemployed. Rule 7 of the Compassionate Appointment Of A Widow/Son/Daughter of Deceased Government Servant/Government Servant Retired On Medical Ground provides the criteria. The same is quoted below:- “7. Determination/Availability of Vacancies (a) Appointment on compassionate grounds should be made only on regular basis and that too only, if regular vacancies meant for that purpose are available. (b) Compassionate appointments can be made up to a maximum of 5% of vacancies falling under direct recruitment quota in any Group ‘C’ or ‘D’ post. The Appointing Authority may hold back up to 5% of vacancies in the aforesaid categories to be filled by direct recruitment through Staff Selection Commission or otherwise, so as to fill such vacancies by appointment on compassionate grounds. A person selected for appointment on compassionate grounds should be adjusted in the recruitment roster against the appropriate category viz. SC/ST/OBC/General depending upon the category to which he belongs. For example, if he belongs to SC category he will be adjusted against the SC reservation point, if he is ST/OBC he will be adjusted against 5 ST/OBC point and , if he belongs to General category he will be adjusted against the vacancy point meant for General category. (c) While the ceiling of 5% for making compassionate appointment against regular vacancies should not be circumvented by making appointment of dependent family member of Government servant on casual/daily age/ ad hoc/ contract basis against regular vacancies, if he is eligible as per the normal rules/orders governing such appointments. (d) the ceiling of 5% of direct recruitment vacancies for making compassionate appointment should not be exceeded by utilizing any other vacancy e.g., sports quota vacancy. (e) Employment under the scheme is not confined to the Ministry /Department/Office in which deceased/medically retired Government servant had been working. Such an appointment can be given anywhere under the Government of India depending upon availability of a suitable vacancy meant for the purpose of compassionate appointment.” Rule 16 (c) and (D) of the Compassionate Appointment Of A Widow/Son/Daughter of Deceased Government Servant/Government Servant Retired On Medical Ground provides that the compassionate appointment should not be delayed and further it should not be rejected merely on the ground that the family of the government servant has received benefit in various welfare scheme. Rule 16(C) and (D) are quoted below:- “(c) The Scheme of compassionate appointments was conceived as far back as 1958. Since then a number of welfare measures have been introduced by the Government which have made a significant difference in the financial position of 6 the families of the Government servants dying in harness/retired on medical grounds. An application for compassionate appointment should, however, not be rejected merely on the ground that the family of the Government servant has received the benefit under the various welfare schemes. While considering a request for appointment on compassionate ground, a balanced and objective assessment of the financial condition of the family has to be made taking into account its assets and liabilities (including the benefits received under the various welfare schemes mentioned above) and all other relevant factors, such as, the presence of an earning member, size of the family, ages of the children and the essential needs of the family, etc. (d) Compassionate appointment should not be denied or delayed merely on the ground that there is reorganization in the Ministry/Department/Office. It should be made available to the person concerned, if there is a vacancy meat for compassionate appointment and he or she is found eligible and suitable under the scheme.” 7. In Naresh Kumar Vs. Union of India and others 2003 U.D., 167 similar controversy has been decided, where it has been held as under:- “8. The respondents have already rejected the claim of petitioner for providing appointment under Dying in Harness Rules. It is true that to give appointment under Dying in Harness Rules is not a matter of right, however, in the present case the ground of rejection as mentioned need consideration. The respondent authority while rejecting the application has stated that since the adequate amount of terminal benefit was paid to the family of the deceased, therefore, the petitioner is not entitled to get appointment under Dying in Harness Rules. This aspect has been 7 considered by Division Bench of Allahabad High Court, Lucknow Bench in State Bank of India Vs. Ram Piyari and others 2001 (2) U.P. Local Bodies and Educational Cases (U.P.L.E.B.E.C.) page 1597 and the court held that the receipt of family pension or other terminal benefits by the widow can not be taken to be good ground for rejecting the case for appointment on compassionate ground. It is common knowledge that the widow is entitled to family pension and other benefits in the even her husband dies in harness. If the plea of respondent is accepted, then no appointment can be made on compassionate ground and the scheme shall have no meaning. As such this ground for rejection is not sustainable.” 9. In view of the above, a writ of certiorari is issued quashing the orders-dated 31.05.2002 and 05.02.2004 (Annexure-4 and 6 to the writ petition) passed by the respondents no. 2 and 3 respectively. The matter is remanded back to the respondents no.2 and 3 for reconsideration for passing appropriate order giving compassionate appointment to the petitioner within a period of two months from the date of presentation of the certified copy of the order after taking into consideration the family condition of the petitioner. 10. Writ petition is allowed. No order as to costs. (Rajesh Tandon, J.) 06.03.2006 Rathour