IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 11055 of 2009 Date of Decision: August 24, 2010 Swaran Kaur and another …Petitioners Versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others. …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE A.N. JINDAL Present: Mr. R.S. Chauhan, Advocate, for the petitioners. Mr. Sanjay Goyal, Advocate, for respondent Nos. 2 to 4. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant petition is directed against order dated 21.5.2007 and 12.6.2007 (P-5 and P-8), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’), while dismissing O.A. No. 556/PB/2006 and R.A. No. 29 of 2007 filed by the applicant- petitioners. 2. The pleaded case of the parties is that late Shri Gurmail Singh, husband of petitioner No. 1 and father of petitioner No. 2 was employed as a daftri in the office of the Director General, National Cadet Corps, New Delhi- respondent No. 3. He expired in harness on 17.8.1998. The applicant-petitioners submitted an application for compassionate appointment of petitioner No. 2 on the post of Lower Division Clerk (LDC). The Committee of the respondent department constituted for such cases considered the case of the applicant- petitioners alongwith other pending cases on 10.8.2000. In all 10 claims for compassionate appointments were pending. A list was drawn wherein admittedly the claim of the applicant-petitioners figured at Sr. No. 6. The grievance of the applicant-petitioners is that ignoring their meritorious claim the respondents have offered compassionate appointment to private respondent Nos. 5 to 7, whose names figured at Sr. Nos. 7, 8 and 9 respectively and, thus, they have been discriminated. This has led to filing of O.A. No. 556/PB/2006 before the Tribunal. The respondents took the stand that the case of the applicant- petitioners was duly considered by the Committee in light of the Instructions/Guidelines issued by the Government of India on the subject of compassionate appointment. The Committee after making a balanced and objective assessment of all the competing claims viz. the financial liabilities, presence of earning members, size of family, ages of the children including unmarried daughters, element of compassion and need for immediate assistance etc. rejected the request of the applicant-petitioners. The Committee found the case of private respondent Nos. 5 to 7 as most deserving and recommended their names for compassionate appointment. The Tribunal dismissed the OA filed by the applicant-petitioners, vide order dated 21.5.2007 (P-5) by observing as under:- “5. We have been taken through Annexure P-3 order dated 19.9.2000 whereby the case of the applicant was considered by the Committee for appointment on compassionate grounds against Group-C post. It had made assessment of the financial conditions of the family taking into account its assets and liabilities and all other relevant factors such as presence of earning members, size of the 2 family, age of the family members, essential needs of the family, elements of compassion and need for immediate assistance to the family due to sudden death of the bread winner. It is on these grounds that the case of the Applicant No. 2 was rejected on 19.9.2000 (Annexure A-3). …… 6. Even as per 1998 Scheme of Compassionate Appointment as issued and enforced by Union of India for appointment on compassionate grounds is not a vested right, which can be enforced at any point of time. Such appointments are considered and granted to provide immediate financial assistance to the family so that it can survive the penurious conditions, if any, to which family may have been thrown into due to sudden death of Govt. employee on whom such applicant was wholly dependant. Respondents have considered the relevant factors and rejected his claim. No one appears on behalf of the applicant to bring to the notice of the Bench that any illegality was committed by the respondents while considering the cases of the applicant and other respondents on the basis of factors mentioned in Annexure A-3 and as required under the Scheme for compassionate appointment.” 3. The applicant-petitioners then filed a review application being R.A. No. 29 of 2007 before the Tribunal explaining the reason for non-appearance of their counsel. Accordingly a prayer was made for review of the order dated 21.5.2007. The Tribunal dismissed the aforesaid review application vide order dated 12.6.2007 (P-8) by concluding that the OA was dismissed on merits and there was no mistake or error apparent on the face of record nor was any other fresh evidence brought on record by the applicant-petitioners. Thus, the Tribunal rejected the plea of violation of principles of natural justice. 3 4. On 13.7.2010, when the matter came up for hearing before us, we felt the necessity to peruse the record showing the comparative merit of the case of the petitioners with those who have been given compassionate appointment as also the relevant policy instructions of the Government of India laying down various factors which are taken into consideration for such appointments. Accordingly, the record along with the Scheme for Compassionate Appointment- 1998, issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India, dated 9.10.1998, has been produced before us. 5. We have heard learned counsel for the parties at length, perused the paper book and minutely gone through the record with the able assistance of learned counsel. At the outset it would be pertinent to refer to the Scheme for Compassionate Appointment-1998 framed by the Government of India and the striking feature of the said Scheme is that it has been framed keeping in view various judgments of Hon’ble the Supreme Court rendered in the cases of Auditor General of India v. G. Ananta Rajeswara Rao, (1994) 1 SCC 192; Umesh Kumar Nagpal v. State of Haryana, JT 1994 (3) SC 525; Life Insurance Corporation of India v. Mrs. Asha Ramchandra Ambekar, JT 1994 (2) SC 183; Himachal Road Transport Corporation v. Dinesh Kumar, JT 1996 (5) SC 319; Hindustan Aeronautics Limited v. Smt. A. Radhika Thirumalal, JT 1996 (9) SC 197; and State of Haryana v. Rani Devi, JT 1996 (6) SC 646 as also on the basis of various recommendations made by the Fifth Central Pay Commission and Study Reports of 1990 and 1994 prepared by the Department of Administrative Reforms and Public Grievances on the subject of compassionate appointments. Para 5 of the Scheme contain eligibility conditions which prescribe as under:- “5. ELIGIBILITY 4 (a) The family is indigent and deserves immediate assistance for relief from financial destitution; and (b) Applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules.” 6. Para 6 of the Scheme provides for certain exemptions regarding observance of requirements of recruitment procedure, clearance from the Surplus Cell of the Department of Personnel and Training/Directorate General of Employment and Training, ban orders, relaxations in upper age limit and relaxation of educational qualifications and other conditions. Para 7 of the Scheme deals with determination/availability of vacancies. As per sub-para (b) of Para 7 of the Scheme the 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. It further provides that 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. Sub-para (d) of Para 7 further put a restriction that ceiling of 5% of direct recruitment vacancies for making compassionate appointment should not be exceeded by utilising any other vacancy e.g. sports quota vacancy. However, sub-para (f) provides that in case sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Ministry/Department/Office to take up the matter with other Ministries/Departments/Offices of the Government of India to provide at an early 5 date appointment on compassionate grounds to those in the waiting list. 7. Para 16 under the heading of ‘General’ postulates certain guiding principles for making appointments on compassionate ground. Sub-para (c) of Para 16 of the Scheme, being relevant is reproduced as under:- “16. GENERAL (a) and (b) xxx xxx xxx (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 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 benefits 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.” (Emphasis by us) 8. Obviously the case of the applicant-petitioners qualifies for consideration under the aforementioned 1998 Scheme framed by the Government of India. 9. Now we proceed to see whether the official respondents have complied with the said instructions contained in the 1998 Scheme and made a 6 comparative assessment of the case of the applicant-petitioners vis-à-vis other competing claims. 10. Learned counsel for respondent Nos. 2 to 4 has produced the minutes of the meeting of the Committee, dated 10.8.2000, which has considered the cases for compassionate appointments against Group ‘C’ (LDC) posts in NCC. A perusal of the minutes shows that a three member Committee has been constituted. The said Committee was required to consider 10 such cases for compassionate appointment in light of the 1998 Scheme. It was required – (i) to recommend the most deserving cases; (ii) to decide order of priority in respect of the pending requests so that in the eventuality of refusal by the 1st recommended or for filling up future vacancies, if any, the compassionate appointment could be offered; and (iii) to consider rejection, if any, of the requests in the light of Government instructions. The Committee after balanced and objective assessment of the financial conditions, found four cases out of ten as most deserving and considered them in order of priority, which is as under:- a) Smt. Snehlata Bhadouria .. Priority-I b) Sh. KC Ranjith .. Priority-II c) Sh. Balvinder Singh .. Priority-III d) Sh. Sharwan Sawarkar .. Priority-IV 11. The Committee recommended that the offer of appointment be issued to Smt. Snehlata Bhadouria-respondent No. 6 against the existing one vacancy and the cases of remaining three may be considered for appointment as and when more vacancies become available to the quota for compassionate appointments. The Committee, however, rejected the case of the applicant- petitioners and other applicants by observing in para 7 of the minutes as under:- “7. The Committee rejected the following cases for the reasons mentioned against each:- 7 1 . Sh. GD Varadarajan S/o Sh. GA Damodharan, UDC Retired on Medical Grounds, NCC Dte Tamil Nadu Sh. GA Damodharan has two grown up sons and no liability such as marriageable daughters etc. exists in his case. 2 . Ms Suman Verma D/o Late Sh. CK Verma LDC, NCC Dte Maharashtra The family has an earning member 3 . Sh. Ram Milan S/o Late Sh. Jagannath Gardner NCC Dte Uttar Pradesh The family has an earning member 4 . Sh. VK Bagaitkar S/o Sh. RP Bagaitkar UDC, Retired on Medical grounds, NCC OTS (i) Sh RP Bagaitkar has two grown up sons. (ii) Taking into account the objective assessment of financial conditions, the family is not considered to be in indigent circumstances. 5 . Sh. Narinder Singh S/o Late Sh. Gurmel Singh Daftry, NCC Dte Punjab (i) The family has four grown up Sons. (ii) Taking into account the objective assessment of the Family’s overall financial conditions, the Committee rejected the case. 6 . Sh. Brijesh Kumar S/o Late Sh. Kedar Singh LDC, WOTS The family has an earning member. 12. It is also pertinent to mention here that for the purpose of balanced and objective assessment, a chart was also drawn wherein full particulars of all the applicants seeking compassionate appointment were depicted. The relevant extract of the said chart is reproduced as under:- Dependents Details of applicant Financial position Sr. No. Name of the deceased/ Retired employee Date of Death/ Invalid Pension Name Ag e Relationshi p Occupation Name & DOB of Applicant Educational Qualification Family Pension Total Retiremen t benefits 1 to 5 xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 6. x Sh. Gurmel Singh Chandigarh Daftri expired at the age of 56 yrs 17.08.9 8 Ms Swaran Kaur Sh. Avatar Singh Sh. Lakhwinder S Sh. Narinder S Sh. Bhader Singh Km Satvinder Kaur 28 26 25 21 16 Wife Son Son Son Son Daughter Unemploye d -do- -do- -do- -do- -do- Sh. Narinder Singh 16.4.74, 25 yrs B.A. (Part I) 1705 1,15,468 8 7. Sh. Ajmer Singh Chowkidar Expired at the age of 53 yrs 19.09.9 8 Smt. Mohinder Kaur Sh Balvinder S Km Gurnam Kaur Sh Sarbjeet S Km Sundeep Kaur 21 16 14 11 Wife Son Daughter Son Daughter Unemploye d Student -do- -do- Sh. Balvinder Singh 23.2.79, son Matric 1,540 1,07,80 8.  KPS Bhadouria UDC, Expired at the age of 49 yrs 31.03.9 9 Ms Snehlata Km Shalini Km Anjali Km Sangeeta Sh Manvendra Singh Sh Gopal Singh Ms Manorama 48 22 20 17 12 78 72 Wife Daughter Daughter Daughter Son Father Mother Unemploye d -do- -do- -do- -do- -do- -do- Smt. Snehlata, 1.1.51, 48 yrs M.A.(I Year) 2,450 3,00,598 9. xxx xxx xxx xxx xxx xxx xxx xxx xxx Xxx 10.  Mangal Sawarkar Carpenter, Expired at the age of 45 yrs 20.10.9 9 Ms Sunderbai Sh. Sharwan Sh. Gangadhar Sh. Chandrashekhar Ms Pushpa 44 27 23 19 11 Wife Son Son Son Daughter House wife Unemploye d -do- -do- Student Sh. Sharwan Sewarkar 12.7.73, 27 yrs, Son SSC, III- WELDER/ CARPENTE R 2,107 98,510 13. From a bare perusal of the above chart and comparative analysis it is clear that the petitioners have received family pension of Rs. 1,705/- and total retiral benefits of Rs. 1,15,468/-. In their family there are six members who were dependent on the deceased employee, out of whom one is petitioner No. 1 herself, four sons and one daughter. All are unemployed. In the case of Smt. Snehlata Bhadouria-respondent No. 6 although after the death of her husband the dependent family members have received the highest total retiral benefits of Rs. 3,00,598/- and family pension of Rs. 2,450/- in comparison of all the remaining applicants, yet the Committee has recommended her name for offer of compassionate appointment against the one available vacancy. It seems that the fact which has weighed with the Committee for recommending her name is that there are seven members in the family who were dependent on the deceased employee and out of them one is wife of the deceased, three daughters, one son and aged father and mother of the deceased employee. All are unemployed. Similar is the position in the case of other applicants whose names have been recommended for offer of compassionate appointment against future vacancies. In other words, it cannot be concluded that the Committee has adopted the policy of pick and chose as has been alleged by the petitioners. After making 9 balanced and objective assessment the Committee has merely made recommendations. It is nobody’s case that the petitioners have not been considered for compassionate appointment by the Committee. The case of the petitioners has been duly considered by the Committee. Eventually, in terms of the 1998 Scheme their case has been rightly rejected. 14. It is also well settled that the compassionate appointment is not a mode of entry into service but it is only to help the surviving members of the family to overcome sudden financial crises created by the sudden death of bread winner, as has been held by Hon’ble the Supreme Court in the cases of National Hydro Electric Power Corpn. v. Nanak Chand, (2004) 12 SCC 487 and Hindustan Aeronautics Ltd. (supra) and. Such an appointment cannot be secured as a matter of right as it is an exception to Articles 14 and 16(1) of the Constitution. The husband of petitioner Nos. 1 expired on 17.8.1998. It cannot be concluded that the situation created by the death of husband of petitioner No. 1 is still prevailing and continuing. 15. For the reasons aforementioned, we find no legal infirmity in the order passed by the Tribunal. Accordingly, this petition fails and the same is dismissed. (M.M. KUMAR) JUDGE (A.N. JINDAL) August 24, 2010 JUDGE Pkapoor 10