C.W.P.No.5994-CAT of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.W.P.No.5994-CAT of 2007 Date of Decision : 14.03.2008 (i) C.W.P.No.5994-CAT of 2007 Union Territory, Chandigarh and others .....Petitioners versus Racho Devi and another .....Respondents Present : Ms.Lisa Gill, Advocate for the petitioners. Mr.Vivek Suri, Advocate for respondent No.1 (ii) C.W.P.No.5999-CAT of 2007 Union Territory, Chandigarh and another .....Petitioners versus Bhupinder Kaur and others .....Respondents Present : Ms.Lisa Gill, Advocate for the petitioners. Mr.H.S.Saini, Advocate for respondent No.1 (iii) C.W.P.No.6962-CAT of 2007 Inspector General of Police, U.T., Chandigarh .....Petitioner versus Jaswinder Kaur and others .....Respondents Present : Ms.Lisa Gill, Advocate for the petitioners. Mr.Rohit Seth, Advocate for respondent No.1. CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE MOHINDER PAL -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? JUDGMENT HEMANT GUPTA, J. This order shall dispose of Civil Writ Petition No.5994-CAT of 2007, filed against the order of the Central Administrative Tribunal, C.W.P.No.5994-CAT of 2007 2 Chandigarh Bench, Chandigarh (hereinafter referred to as the `Tribunal') dated 31.8.2006, whereby the petitioners were directed to reconsider the claim of the applicant-Racho Devi for her appointment on compassionate ground against any available post meant for the purpose; Civil Writ Petition No.5999-CAT of 2007, filed against the order of the Tribunal dated 30.8.2006, whereby the petitioners were directed to reconsider the claim of the applicant-Bhupinder Kaur for her appointment on compassionate ground against any available post meant for the purpose and Civil Writ Petition No.6962-CAT of 2007, filed against the order of the Tribunal dated 14.11.2006 whereby the petitioners were directed to consider the claim of the applicant No.2-Balvir Singh for Class-IV post. Since the issues arising in all the three petitions are the same, therefore, all the three cases are being disposed of by a common order. However, primarily, the facts are taken from Civil Writ Petition No.5994- CAT of 2007. In the aforesaid case, Mohinder Pal, husband of respondent No.1 was posted as Constable in the Chandigarh Police. He died on 9.4.1998. The respondent No.1 moved an application for appointment on compassionate ground as she has three children of the age of 11 years, 9 years and 7 years and has no source of livelihood. The application of respondent No.1 dated 30.6.1998 to seek appointment on compassionate ground, was considered by a Common Committee of the Union Territory Administration, constituted for consideration of such requests. It is pointed out that though the name of the applicant-respondent No.2 was recommended for appointment, but vide communication dated 18.3.2005, C.W.P.No.5994-CAT of 2007 3 Annexure A-16, the request was deleted being more than 3 years old. It is the said communication which was made subject matter of challenge before the learned Tribunal. It is contended by the petitioners that the scheme of compassionate appointment was circulated by the Government of India, Ministry of Personnel, Public Grievances and Pension, on 9.10.1998. The respondent No.2 being eligible for appointment under the aforesaid Scheme, is entitled to be considered for appointment on compassionate ground against 5% posts of the direct recruitment. It is also contended that the name of the respondent No.2 has been deleted being more than 3 years old case. It is pointed out that against the 49 Group-C posts, 4 posts had already been filled up through compassionate appointments and similarly out of 133 Group-D posts, 13 posts were filled up by way of compassionate appointment and, thus, there is no post available which can be filled up out of the candidates seeking appointment on compassionate ground. Reliance was placed on a circular dated 5.5.2003 wherein maximum time to keep the name of a person under consideration for offering compassionate appointment, was contemplated to be 3 years. Since there was no vacancy against which the applicant could be appointed, therefore, her name was rightly deleted. It may be mentioned here that in Civil Writ Petition No.5999- CAT of 2007, a list of applicants waiting for compassionate appointment, has been appended as Annexure A-4. The first candidate in the said list is Bhagwanti whose husband died on 6.4.1996. The name of Racho Devi appears at Serial No.12, though the date of death of the deceased employee C.W.P.No.5994-CAT of 2007 4 is 10.4.1998. The name of the applicant in C.W.P.No.5999-CAT of 2007 i.e., Bhupinder Kaur stands at Sr.No.15 of that list with the date of death of the deceased employee as 2.5.1998. A perusal of the list Annexure A-4 shows that the same has been maintained according to the date of death of the deceased employee. Learned counsel for the respondents could not point out that any person lower in such list has been given appointment in preference to the applicant. Learned counsel for the petitioners has vehemently argued that the appointment on compassionate ground is a concession granted to the dependent members of the deceased employee to tide over immediate financial crises. It is not a source of employment and that fixation of 5 % posts to be filled up from amongst the dependents of deceased Government employee cannot be said to be unjustified. The Administration has maintained a list of eligible dependent members of the deceased Government employees and employment can be given only in terms of the scheme. Still further, the appointment can be given upto the maximum 5% of the vacancies fallen vacant under the direct recruitment in Group-C and Group-D categories in terms of the scheme for appointment on compassionate ground circulated by the Central Government vide circular dated 9.10.1998. Since 5% posts falling vacant in direct recruitment quota, already stand filled up from amongst the dependent members of the deceased employees, therefore, the applicant cannot seek any direction for appointment. The direction of the learned Tribunal for reconsideration of the case of the applicant for compassionate appointment is wholly unjustified when the circular dated 5.5.2003 restricts the validity of the list C.W.P.No.5994-CAT of 2007 5 for a maximum period of 3 years. On the other hand, learned counsel for respondents have argued that the action of the petitioners in not granting appointment to the applicants is wholly discriminatory. Reference is made to the averment made in para 10 of the application whereby 7 posts of Sweepers, 5 Posts of Mallies and 2 posts of peons were said to have been fallen vacant between the years 2001-2004 and thus, it was sought to argue that number of posts were available and, therefore, the action of the petitioners in not considering the claim of the applicant is wholly unjustified. It is also argued that the wife of one V.K.Chopra has been appointed on compassionate ground, which shows the pick and choose policy adopted by the petitioners in offering appointment on compassionate ground. In Civil Writ Petition No.6962-CAT of 2007, the argument raised by learned counsel for the respondent was that the applicant- respondent No.2 applied for appointment on attaining the age of 18 years and he has not been able to qualify the physical test. On the one hand, the applicant has been declined appointment on compassionate ground for not qualifying the physical test, but on the other hand, in the case of other candidates, relaxation has been given in respect of physical fitness for grant of appointment on compassionate ground and, therefore, the action of the petitioners in not granting the appointment to the applicant on compassionate ground is unjustified. Learned counsel for the respondents has also relied upon a Single Bench judgment of this Court reported as “Daya Kaur Versus Haryana State Electricity Board, 1996 (2) SCT 446” wherein it was found that the dependent must be eligible for making an C.W.P.No.5994-CAT of 2007 6 application within the period of limitation indicated in the rules. In the case of a minor who is not qualified to apply for the appointment on compassionate ground, the period of limitation cannot but start from the date of attaining his majority. Therefore, the applicant should have been granted appointment on compassionate ground. The principles underlying the policy of compassionate appointment have been outlined in the decisions of the Hon'ble Supreme Court. In case Auditor General of India and others Versus G.Ananta Rajeshwara Rao, (1994) 1 SCC 192, the Hon'ble Supreme Court has found the appointment on the ground of descent is in violation of Article 16 (2) of the Constitution of India. But appointments confined to son, daughter of widow of a deceased government employee who died in harness and who needs immediate appointment on the ground of immediate need of assistance, alone would be acceptable. It was held to the following effect:- “xx xx xx xx Therefore, the High Court is right in holding that the appointment on grounds of descent clearly violates Article 16 (2) of the Constitution. But , however, it is made clear that if the appointments are confined to the son/daughter or widow of the deceased government employee who died in harness and who needs immediate appointment on grounds of immediate need of assistance in the event of there being no other earning member in the family to supplement the loss of income from the bread- winner to relieve the economic distress of the members of the family, it is unexceptionable.” C.W.P.No.5994-CAT of 2007 7 In case “Umesh Kumar Nagpal Versus State of Haryana, (1994) 4 SCC 138, their Lordships of the Supreme Court held as under:- “The whole object of grant of compassionate- employment is, thus to enable the family to tide over the sudden crises. The object is not to give member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied that but for the provisions of employment, the family will not be able to meet the crisis that job is to be offered to the eligible member of the family. xx xx xx The object being to enable the family to get over the financial crisis which it faces at the time of death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.” In case Jagdish Prasad versus State of Bihar, (1996) 1 SCC 38, the Hon'ble Supreme Court rejected the claim of a minor dependent to be appointed on compassionate ground after attaining the age of majority by making the following observation:- “The very object of appointment of a dependent of the deceased employee who died in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained C.W.P.No.5994-CAT of 2007 8 majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment to the dependent of a deceased government servant which cannot be encouraged, de hors the recruitment rules.” In case Haryana State Electricity Board versus Naresh Tanwar, (1996) 8 SCC 23, the Hon'ble Supreme Court reversed some of the orders of this Court directing appointment of dependents of the deceased employees who were minor at the time of the death of the concerned employee. While setting aside the orders of the High Court, the Hon'ble Supreme Court reiterated the law laid down in Umesh Kumar Nagpal's case (supra) in the following words:- “It has been indicated in the decision of Umesh Kumar Nagpal's case (supra) that compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment as an exception to the general rule of open recruitment, is intended to meet the financial problem being suffered by the members of the family of the deceased employee. In the other decision of this Court in Jagdish Prasad's case, it has been also indicated that the very object of appointment of dependent of deceased employee who dies in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years. Considering the aforesaid judgments, a Division Bench of this Court in Charanpreet Singh v. Punjab State through Secretary to C.W.P.No.5994-CAT of 2007 9 Government, Punjab Education Department, 2000(2) SCT 444, found that the circular of the State Government in entitling a minor dependent to apply for ex-gratia employment within six months of his/her attaining majority cannot but be termed as extra liberal. It was found that there is no provision for relaxation of the limit of six months period within which the minor dependent has to submit application after attaining majority. It was held to the following effect:- “Viewed in the light of the decisions of the Supreme Court and this Court, the circular dated 8.8.1998 issued by the Government of Punjab entitling a minor dependent to apply for ex-gratia employment within six months of his/her attaining majority cannot but be termed as extra liberal. By virtue of this circular the minor dependent becomes entitled to compassionate appointment irrespective of the time gap between the demise of the bread winner and the submission of the application by the minor after attaining majority. However, as there is no provision for relaxation of the limit of six months period within which the minor dependent has to submit application after attaining majority, we cannot issue a writ directing the respondents to entertain the prayer of the petitioner, who, as per his own showing, had applied for ex-gratia employment after more than nine years of the demise of his mother and almost one year after attaining the age of 18 years. In our considered opinion, the petitioner's failure to apply within six months of his attaining majority has been rightly made basis for declining his prayer for compassionate appointment. Therefore, there is no C.W.P.No.5994-CAT of 2007 10 valid ground to nullify the order passed by respondent No.2.” Later on a Division of Bench of this Court in Subhash v. State of Haryana and others, 2005(2) SCT 478, has held to the following effect:- “We are of the view that the normal procedure for appointment is open recruitment following a lawful and legal procedure. Such a procedure means that appointment is made after vacancies are identified and then they are advertised calling for applications from the public at large. Upon receipt of such applications, the candidates are screened, interviewed and short-listed in a rational and reasonable manner. Legally there are only two known methods/modes of recruitment. One of them being open recruitment as indicated above and the other is filling up the vacant posts by promotion. The concept of compassionate appointment is a third source which has been developed on the basis of compassion but such compassion cannot be allowed to gallop like an unruly house in favour of one or other member of the family of the deceased because if it were to be so allowed, then such a consideration would go against the expectations of millions of other families which have been subjected to similar unforeseen miseries on account of the death of their bread-winner. The concept of compassionate appointment virtually obliterates an elaborate and transparent procedure of open recruitment but in the opinion of this Court, following the observations of the Apex Court, such a procedure C.W.P.No.5994-CAT of 2007 11 cannot be allowed to keep the consideration alive for a period ad finitum. If it is allowed to do so, it will encroach and create inroads into an otherwise transparent procedure commonly known as open recruitment. The effect would be that all of a sudden, when other persons are in the queue waiting for their turn for regular appointment, their legitimate expectations would abruptly be snatched away by a seeker of compassionate appointment at a time when the consideration for such appointment had become non-existent – the deceased parent having died 4/5 years ago – an event which can hardly be said to be reasonable vis-a-vis persons waiting for regular appointment. We are, therefore, of the view that there cannot be continuity of cause of action in matters of compassionate appointment.” In State of Manipur Vs. MD. Rajadin, (2003) 7 SCC 511, the Hon'ble Supreme Court was considering the office memorandum issued by the Government of Manipur dealing with the parents, son, daughter etc. of a Government employee, who die in harness leaving behind the family in indigent circumstances. The Court held to the following effect:- “As the appointments of such nature envisaged under the said Scheme are made to tide over immediate difficulties, there is an inbuilt requirement of urgency in making the application. Though it was contended that the respondent was a minor at the time of his father's death, it is to be noted that he was 10 years of age in 1980 when his father died. Even if a reasonable period after he attained majority is taken, certainly the application on 25.7.1997 seeking appointment was highly C.W.P.No.5994-CAT of 2007 12 belated.” While considering the aforesaid case, the Hon'ble Supreme Court in Commissioner of Public Instructions and others Vs. K.R. Vishwanath, (2005)7 SCC 206, has held that the claim of appointment on compassionate ground can be considered within reasonable time of a sudden crises occurring in the family. It was held by the Hon'ble Supreme Court to the following effect:- “......The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of 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.” This Court in Civil Writ Petition No.13472 of 2006, Union of India Versus Tilak Raj and another, decided on 5.12.2007, has considered the question of right of appointment of a minor dependent who has applied for appointment after attaining the age of 18 years, wherein it was held to the following effect:- “xx xx xx xx It is apparent that the application for appointment was made 15 years after the death of the father of respondent No.1. Thus, appointment at such stage is not to mitigate the hardship due to the death of a C.W.P.No.5994-CAT of 2007 13 bread earner in the family. Such appointment could be justified if it was to be granted soon after the death of the father of respondent No.1. Mere fact that he was minor at the time of death of his father would not confer any right on respondent No.1 to seek appointment within five years of his attaining the age of majority. The Instructions (Annexure P.4) have to be interpreted keeping in view the principles in making appointment on compassionate grounds as explained by the Courts. In any case, there was clear stipulation in Clause 3 (ii) of the Instructions that though the General Manager has power to extend the time but the cases should not be more than 10 years old as reckoned from the date of death. Therefore, the appointment cannot be sought by respondent No.1 after 10 years of the death of the bread winner. xx xx xx xx.” Further, it has been repeatedly held by the Hon'ble Supreme Court as well as by this Court that the Courts would not be justified in directing the appointment on compassionate ground as a matter of course. It has been held that the Authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crises, that a job is to be offered to the eligible member of the family. It was held to the following effect by the Division Bench of this Court in “Gurdevi Versus State of Haryana and others, 2005 (2) P.L.R. 516”:- “xx xx xx xx 4. The aforesaid observations make it abundantly clear that High Court would not be C.W.P.No.5994-CAT of 2007 14 justified in directing the appointment on compassionate ground as a matter of course. The Supreme Court has clearly laid down in Umesh Nagpal's case that the Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crises, that a job is to be offered to the eligible member of the family. It has also been held that the provision for employment even on the lowest post can only be justified in the form of relief against destitution. It must also be framed (noticed ?) that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The consideration for such employment is not a vested right. The object of offering employment on compassionate ground is only to enable the family to get over the financial crises which it faces at the time of the death of the sole breadwinner. In view of the clear enunciation of the law by the Supreme Court, it would not be possible to hold that the petitioner has been denied the appointment arbitrarily or unreasonably. xx xx xx xx.” In “Vijay Kumar Versus State of Haryana and others, 2005 (3) S.C.T.750”, the Division Bench of this Court considered the Rules and the Instructions issued by the State of Haryana from time to time and held that:- “13. The aforesaid observations make it abundantly clear that High Court would not be justified in directing the appointment on C.W.P.No.5994-CAT of 2007 15 compassionate ground as a matter of course. The Supreme Court has clearly laid down in Umesh Kumar Nagpal's case (supra) that the Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crises, that a job is to be offered to the eligible member of the family. It has also been held that the provision for employment even on the lower post can only be justified in the form of relief against destitution. It must also be noticed that as against the destitute family of the deceased, there are millions of other families which are equally, if not more destitute. Consideration for such employment is not a vested right. xx xx xx xx.” The Hon'ble Supreme Court in I.G.(Karmik) & others Versus Prahalad Mani Tripathi, 2007 (6) S.C.C. 162, has held that the public employment is considered to be a wealth and cannot be given on descent. It was held to the following effect:- “xx xx xx xx 5. An employee of a State enjoys a status. Recruitment of employees of the State is governed by the rules framed under a statute or the proviso appended to Article 309 of the Constitution of India. In the matter of appointment, the State is obligated to give effect to the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. All appointments, therefore, must conform to the said C.W.P.No.5994-CAT of 2007 16 constitutional scheme. This Court, however, while laying emphasis on the said proposition carved out an exception in favour of the children or