IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 491 of 2005(O&M) Date of Decision : August 16, 2011 Parminder Kaur ....Petitioner Versus Union of India and others .....Respondents CORAM : HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. K.S.Dadwal, Advocate for the petitioner. Ms. Deepali Puri, Senior Panel Counsel for Union of India-respondents No.1 to 6. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? T.P.S. MANN, J. 1. By way of present writ petition, the petitioner has sought issuance of a writ in the nature of certiorari for quashing of order dated 30.10.2004 (Annexure P-11) passed by the General Manager, Ordnance Cable Factory, Chandigarh whereby the request made by her for appointment on compassionate grounds was rejected. She has also sought quashing of order dated 9.12.2004 (Annexure P-12) passed by the Chandigarh Bench of the Central Administrative Tribunal C.W.P. No. 491 of 2005(O&M) -2- dismissing O.A. No. 1107/CH/2004 filed by her. Further, she has sought issuance of a writ of mandamus for directing the respondents to consider and appoint her on compassionate grounds on any suitable post. 2. According to the petitioner, her husband Santokh Singh, who was working as Electrician (HS-I) in Ordnance Cable Factory, Chandigarh expired on 21.3.2001 due to renal failure. He left behind his widow-petitioner, three daughters and one son. None of them was gainfully employed and, therefore, after the death of Santokh Singh, the petitioner and her family members were facing starvation. The Central Government had framed a scheme (Annexure P-1) for giving compassionate appointment to the relative of the deceased employee as per which points were assigned for various parameters for a comparatively balanced and objective assessment of requests of really deserving candidates for compassionate appointment. The scheme further provided that the candidate be required to apply only once and final decision taken thereon be informed to the concerned candidate by passing a speaking order. It was also stipulated that if a vacancy was available, the appointment on compassionate grounds had to be offered within one year and, that too, keeping in view the ceiling of 5% quota meant for the purpose. The petitioner being eligible, moved an application on 23.4.2001 to the authorities for compassionate appointment. She specifically stated therein that two of her daughters C.W.P. No. 491 of 2005(O&M) -3- were doing diploma of Medical Laboratory Technician and huge amount was being spent on the same. The petitioner had also mentioned that she was a graduate and not employed anywhere and, therefore, she deserved to be given appointment on compassionate grounds. After receipt of her application dated 23.4.2001 (Annexure P-2), the General Manager, Ordnance Cable Factory, Chandigarh vide letter dated 6.7.2001 (Annexure P-3) informed her that since there was a ban on the appointment, it was not possible to consider her or her children for appointment on compassionate grounds. Lateron, vide office memo. dated 5.5.2003, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, Government of India while taking into consideration the fact that if compassionate appointment to genuine and deserving cases was not possible in the first year, due to non-available of regular vacancy, the prescribed Committee may review such cases to evaluate the financial conditions of the family to arrive at a decision as to whether a particular case warrants extension by one year. Further, if on scrutiny by the Committee, a case was considered to be deserving, the name of such a person could be continued for consideration for still one more year. Accordingly, the maximum time for which a person could be kept under consideration for offering compassionate appointment was prescribed as three years and it was also decided that after three years, if compassionate appointment was not possible to be offered, the case be finally closed and not to be considered again. Thereafter, the petitioner kept on visiting the C.W.P. No. 491 of 2005(O&M) -4- authorities but every time, she was informed that as and when any vacancy would become available, she would be considered. Due to the fact that she had no source of income, the petitioner undertook a computer course as well as of Steno Typist. Subsequently when the petitioner came to know about the availability of certain posts, she submitted a proforma (Annexure P-5) dated 11.10.2003 duly recommended by the respondents wherein she furnished all the required information. Despite the same, she did not hear anything from the respondents. On 15.10.2003, she presented an appeal (Annexure P-6) to the Director General, Ordnance Factories and the Chairman, Ordnance Factory Board requesting for employment on extreme compassionate grounds but it did not bear any fruit. The Ordnance Cable Factory advertised 35 different posts of Group 'C' and 'D' in the Employment News dated 27.12.2003 and 2.1.2004. Moreover, during August, September, 2003, 4 posts of Store Keeper were advertised and according to the petitioner atleast one vacancy from 5% quota was existing for which she could be considered for appointment on compassionate grounds. After coming to know of the aforementioned vacancies, the petitioner submitted one more appeal dated 3.3.2004 (Annexure P-8). All her representations/applications/appeals were turned down by the General Manager, Ordnance Cable Factory on 11.3.2004 (Annexure P-9). However, letter (Annexure P-9) did not state any reason as to why her claim for compassionate appointment had been rejected. Accordingly, she submitted another appeal dated 15.3.2004 and also C.W.P. No. 491 of 2005(O&M) -5- sent letter dated 16.3.2004. When no action was taken upon the same, the petitioner filed OA No. 269-CH-2004, which was disposed of by the Chandigarh Bench of the Central Administrative Tribunal on 30.7.2004 (Annexure P-10) by directing the respondents to reconsider her case in accordance with law and the rules/instructions by passing a fresh speaking order. Subsequently, the petitioner was served with order dated 30.10.2004 (Annexure P-11) whereby her request for compassionate appointment was again turned down. She challenged the order dated 30.10.2004 by filing OA No. 1107/CH/2004 but the same had been dismissed vide order dated 9.12.2004 (Annexure P-12). 3. According to the petitioner, the orders (Annexures P-11 and P-12) were illegal, unjust, improper, unconstitutional, arbitrary, discriminatory and against the principles of natural justice, equity and good conscience and, therefore, liable to be quashed. Further, she sought issuance of directions to the respondents to give her appointment on compassionate grounds. 4. In the written statement filed on behalf of respondents No.1 to 6, it was averred that the case of the petitioner had been considered by the authorities objectively and it was found not feasible to accede to her request for appointment on compassionate grounds. While considering the case of the petitioner and similarly situated persons, a long list was prepared in which her name was mentioned at serial No.4. Since the deserving/meritorious cases of similarly placed persons were C.W.P. No. 491 of 2005(O&M) -6- yet to be considered for appointment on compassionate grounds, the petitioner could not be offered such an appointment as 5% quota had already been considered and filled. The petitioner could not be offered appointment as vacancy against 5% quota by direct recruitment on compassionate grounds was not available. In view of the same, the Tribunal had rightly dismissed the OA filed by the petitioner vide impugned order dated 9.12.2004. Prayer was, accordingly, made for dismissal of the writ petition. 5. Subsequently, respondents No.1 to 6 filed additional affidavit before this Court stating therein that the case of the petitioner was considered for appointment on compassionate grounds in view of the criteria laid down by the Government of India, Ministry of Defence vide its letter dated 3.4.2001 (Annexure R-1). It was also stated that alongwith the petitioner, the case of eleven other candidates was also considered and points awarded to them after taking into consideration the number of individuals including the dependents, the total assets left by the deceased employee, including the movable and immovable property and income from other sources etc. After considering the case of the petitioner, she was awarded 72 points as per the criteria mentioned in letter (Annexure R-1). The comparative statement of cases considered for compassionate appointment of the employees, who died while in service was enclosed as Annexure R-2. As per the details given in the comparative statement, 12 candidates were found genuine C.W.P. No. 491 of 2005(O&M) -7- for appointment on compassionate grounds for Group 'D' and 'C' posts but for want of vacancy under 5% ceiling of direct recruitment quota as prescribed under policy dated 9.10.1998, none could be offered appointment on compassionate grounds and it was for the reason that since there were 3 employees having secured more points than the petitioner and were waiting for appointment on compassionate grounds, the petitioner could not be offered appointment at Ordnance Cable Factory, Chandigarh over and above those three candidates. However, it was averred that in case the petitioner was willing to be considered for appointment on compassionate grounds at a place other than Ordnance Cable Factory, Chandigarh, her case could be reconsidered by the respondents as per the provisions of para 7 of the 1998 policy. 6. The aforementioned additional affidavit filed on behalf of respondents No.1 to 6 was considered by the Division Bench on 20.9.2005. Leaned Central Government Counsel also stated that in case the petitioner was willing to take appointment outside Chandigarh, the respondents would be willing to reconsider the matter. The offer was accepted by learned counsel for the petitioner when he stated that the petitioner would be willing to accept the appointment outside Chandigarh. The writ petition was, accordingly, disposed of as infructuous but the respondents were directed to finalize the case of the petitioner within four months. 7. On 16.1.2006, the petitioner was informed by the General C.W.P. No. 491 of 2005(O&M) -8- Manager, Ordnance Cable Factory, Chandigarh that her case was referred to 40 Ordnance Cable and Ordnance Equipment Factories all over India vide letter No. A-557/CA/LB dated 5.10.2005 for considering the same for compassionate appointment against the group 'C' and 'D' posts within 5% limit as prescribed by DOPT vide policy dated 9.10.1988 but all the 40 had shown their inability to consider her case because of limit of vacancies for compassionate appointment within 5% ceiling limit for each recruitment year and, hence, her request for appointment on compassionate grounds even outside Chandigarh, though considered objectively and sympathetically, was rejected for want of vacancies within 5% limit. Faced with the same, the petitioner sought review of the order dated 20.9.1995 by filing an application under Order XLVII Rule 1 CPC read with Article 226 of the Constitution and Sections 114 and 151 CPC. Alongwith the review application, the petitioner attached the copy of order dated 20.9.2005 (Annexure A-1) passed by the Division Bench of this Court while dismissing the writ petition filed by the petitioner as infructuous, letter dated 16.1.2006 (Annexure A-2) issued by Joint General Manager, Ordnance Cable Factory, Chandigarh as well as the legal notice dated 31.1.2006 (Annexure A-3) served by the petitioner upon the General Manager. The review application came up for hearing on 31.3.2006 when notice was issued to the Central Government Counsel. On 28.4.2006 the review application was accepted and the order dated 20.9.2005 dismissing the writ petition as infructuous, was recalled. C.W.P. No. 491 of 2005(O&M) -9- 8. On the adjourned date, learned counsel for the respondents requested for some time to file a detailed reply to the review application, particularly to the averments made in paragraph 4 therein with regard to order dated 16.1.2006 wherein it had been asserted that 40 Ordnance Factories had shown their inability to consider the case of the petitioner for compassionate appointment on account of 5% ceiling limit for each recruitment year. Pursuant thereto a detailed reply dated 8.12.2006 was filed by way of affidavit of Works Manager, Ordnance Cable Factory, Chandigarh. The petitioner, thereafter, filed miscellaneous application No. 14011 of 2007 with a prayer for directing the respondents to appoint her on compassionate grounds keeping in view the availability of the vacancy as was clear from the documents attached with the application. Alongwith the application, the petitioner had attached copies of additional affidavit dated 19.9.2005 on behalf of respondents No.1 to 6 (Annexure A-1), order dated 20.9.1995 (Annexure A-2), letter dated 16.1.2006 (Annexure A-3), reply dated 8.12.2006 to the review application (Annexure A-4), letter dated 27.6.2007 (Annexure A-5), letter dated 7.7.2007 (Annexure A-6), letter dated 7.7.2007 (Annexure A-7), letter dated 13.7.2007 (Annexure A-8), letter dated 23.7.2007 (Annexure A-9), letter dated 24.7.2007 (Annexure A-10), letter dated 24.7.2007 (Annexure A-11), letter dated 24.7.2007 (Annexure A-12), letter dated 26.7.2007 (Annexure A-13), letter dated 28.7.2007 (Annexure A-14) and notice dated 31.7.2007 (Annexure A-15). C.W.P. No. 491 of 2005(O&M) -10- 9. The respondents also filed their reply to the aforementioned miscellaneous application filed by the petitioner and alongwith the same attached copies of letter dated 4.10.2005 (Annexure R-1), letter dated 2.3.2007 (Annexure R-2), letter dated 26.6.2007 (Annexure R-3) and letter dated 22.6.2007 (Annexure R-4). The stand taken by the respondents in their reply was further countered by the petitioner by filing rejoinder dated 8.2.2011. Alongwith the rejoinder, she appended copy of information received by her under Right to Information Act (Annexure A-16), letter dated 4.12.2003 (Annexure A-17) and letter dated 22.2.2007 (Annexure A-18). 10. At the time of final hearing, learned counsel for Union of India also produced the record file of Ordnance Cable Factory, Chandigarh as per which letter No. A-557/CA/LB dated 5.10.2005 was dispatched to all the Ordnance Factories in India except Ordnance Cable Factory, Chandigarh itself on 6.10.2005 and an expenditure of Rs.195/- @ Rs.5/- per letter was incurred. 11. It is true that the respondents at one point of time expressed their willingness to reconsider the matter after the petitioner expressed her willingness to take appointment outside Chandigarh because out of 12 eligible candidates, 3 had secured more points than the petitioner and were still waiting for appointment as there was no vacancy under 5% ceiling by direct recruitment yet a sincere attempt was made to adjust her at a place outside Chandigarh by referring the same to all the C.W.P. No. 491 of 2005(O&M) -11- Ordnance Factories all over India vide letter No. A/557/CA/LB dated 5.10.2005. All the Ordnance Factories expressed their inability to consider her case because of limit of vacancies for compassionate appointment within 5% ceiling limit for each recruitment year. Despite the fact that her case was considered objectively and sympathetically but for want of vacancies within 5% limit for each recruitment year prescribed under the direct recruitment quota, she could not be appointed on compassionate grounds even outside Chandigarh. 12. The reliance of the petitioner on the information received by one Neela Ram under the Right to Information Act (Annexure A-16) from the Central Public Information Officer is misplaced because right from the year 1996 till the year 2004, no post had fallen vacant so as to be filled on compassionate grounds. In the years 2005 to 2009 only one post had fallen vacant every year. In the year 2010, no post had fallen vacant. As the 5% limit had been prescribed by DOPT vide letter dated 9.10.1998 for each recruitment year, the petitioner could not have been appointed on compassionate grounds. Moreover, out of 12 eligible candidates, her merit was shown at serial No. 4. Three candidates ahead of her have not been accommodated. Therefore, she does not have any better right than those three ahead of her in the matter of appointment on compassionate basis. 13. As is clear from proforma (Annexure P-5) filled in by the petitioner, she and her family was receiving an amount of Rs.2,750/- per C.W.P. No. 491 of 2005(O&M) -12- month as family pension besides having received DCR Gratuity amounting to Rs.1,67,000/- and GPF balance amounting to Rs.3,85,000/-. Over and above, she had received insurance amount of Rs.44,000/- and encashment of leave to the tune of Rs.60,000/-. Therefore, it cannot be said that for want of compassionate appointment, she and her family were facing starvation. 14. In view of the above, no relief can be granted to the petitioner. The petition is, therefore, dismissed. ( M.M.KUMAR ) ( T.P.S. MANN ) JUDGE JUDGE August 16 , 2011 ajay-1