C.W.P. No. 1630-CAT of 2005 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.W.P. No. 1630-CAT of 2005 Date of Decision: Dec.8, 2010 Smt. Jokhna Devi and another ................................... Petitioners Versus Union of India and others ......................................... Respondents Coram: Hon'ble Mr.Justice M.M. Kumar Hon'ble Ms. Justice Ritu Bahri 1. To be referred to the Reporter or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. Subhash Ahuja, Advocate for the petitioner. Mr. S.S. Chaudhary, Advocate for UOI. ... RITU BAHRI, J. This petition filed under Article 226 of the Constitution challenges order dated 6.11.2003 (Annexure P-9), rejecting the claim of petitioner No.2, seeking appointment on compassionate grounds. Challenge has also been made to the judgment dated 8.10.2004 (P-10), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, the Tribunal) upholding the order dated 6.11.2003. Brief facts of the case are that late Shri Ram Udhar, husband of petitioner No.1 and father of petitioner No.2, had joined as 'Poultry Attendant' in the respondent department in the year 1973. Unfortunately, he C.W.P. No. 1630-CAT of 2005 [ 2 ] died in harness on 27.6.1999, leaving behind petitioner No.1, two sons and two daughters. At the time of his death, three out of the four children were minor and school going. The elder son i.e. petitioner No.2 was above 18 years of age. There was no earning member in the family after the death of Shri Ram Udhar. Petitioner No.1 applied for appointment of her son Chander Parkash-petitioner No.2, against a Group `D' post on compassionate grounds on 11.8.1999 because he fulfilled all the conditions for being appointed on compassionate grounds. During the pendency of the said application, the department sought another application on the ground that the earlier application was lost. On 14.08.2000, the petitioner again filed an application (Annexure P-4). The Director, C.P. Breeding Farm, Chandigarh-Respondent No.4 recommended the case of the petitioner to Union of India, Ministry of Agriculture-respondent No.2 for appointing petitioner No.2 on the post of Poultry Attendant, which was lying vacant at that time in the office of respondent No.4. On 30.06.2001, a reminder was also sent by respondent No.4 to respondent No.2 for according sanction for appointment of petitioner No.2. On 22.10.2002 and 7.10.2003, the petitioner No.1 also sent two reminders (Annexures P-7 & P-8) respectively, explaining her pathetic financial position and requested the respondents to appoint her son on compassionate basis. Eventually, on 6.112003, respondent No.4 informed petitioner No.1 that her application has been rejected by the Ministry of Agriculture on the ground that a period of three years had elapsed and the application could not be considered beyond the period of three years. The petitioner challenged this order by filing O.A. No. 1094-CH of 2003 before the Tribunal. The Tribunal dismissed the O.A. primarily on the ground that it C.W.P. No. 1630-CAT of 2005 [ 3 ] cannot direct appointment on compassionate grounds against the prevailing government instructions dated 5.5.2003 (Anenxure P-14) and that 5% posts reserved for compassionate appointment have been exhausted and there was no vacant post available to accommodate petitioner No.2 (P-10). Mr. Ahuja, learned counsel for the petitioners, has vehemently argued that the reliance placed by the Tribunal on instructions dated 5.5.2003 (Annexure P-14) is misconceived. These instructions fixing the time limit for considering the claim for appointment on compassionate grounds were issued after the petitioner had made an application for compassionate appointment. In that regard, he has placed reliance on a Division Bench judgment rendered by this Court in the case of Jai Ram v. U.H.B.V.N. Ltd. and another, 2004(3) PLR 895 (P-15). We have heard learned counsel for the parties and perused the paper Book with their able assistance. It is conceeded position that the petitioners filed the application in time. However, their case has been considered and rejected on the ground that there was no vacancy available to appoint petitioner No.2 on compassionate basis and a period of three years has elapsed. Their case has been considered under the Scheme dated 9.10.1998 (P-16) issued by the Government of India regarding appointment on compassionate grounds. Clause 7 of the Scheme deals with `Determination/Availability of vacancies'. As per Clause 7 (c) it is contemplated that appointments should not be made on casual/daily wage/ad-hoc/contract basis against regular vacancies. The ceiling of making appointments to the extent of 5% creates no bar for considering appointment if the person is eligible as per normal rules governing such appointments. Clause 7(c) of the aforesaid Scheme is C.W.P. No. 1630-CAT of 2005 [ 4 ] reproduced hereunder:- “(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 wage/ad- hoc/contract basis against regular vacancies, there is no bar to considering him for such appointment if he is eligible as per the normal rules/orders governing such appointments.” A bare reading of the above Clause shows that the object of the Scheme was that in an appropriate case ceiling of 5% posts can be circumvented. A regular appointment can be made out of eligible persons. However, appointment on casual/daily wage/ad-hoc/contract has been depricated. While rejecting the case of petitioner No.2, vide order dated 6.11.2003 (Annexure P-9), no reasons have been given showing that the financial position of the petitioner's family has been taken into account. The case has been rejected merely on the ground that a period of three years has elapsed. The Scheme under Clause 7(c) gives ample scope to appoint an eligible dependent family member of Government servant on compassionate ground beyond 5% posts. It has come on record that in the present case there was no bread earner in the family after the death of the deceased employee. There were three minor children and one major i.e. petitioner No.2. The petitioner had sent reminders stating severe hardship. Moreover, subsequent instructions dated 3.12.1999 (Annexure P-17) issued by the Government of India lays down that deserving candidate's case should be considered within a period of one year if the vacancy is available in the C.W.P. No. 1630-CAT of 2005 [ 5 ] ceiling of 5%. The case of petitioner No.1-widow with three minor children and one major son has been rejected without considering the economic distress of the family. The Scheme's Clause 10(b) requires the authorities to exercise `Extreme Caution' in considering economic distress of the members of the family. The case of petitioner No.2 has been recommended by respondent No.4 stating that there was one post of Group`D' available in the office at the time of death of his father (P-5). Respondent No.2 has not considered this aspect while considering the case of the petitioner. We also found force in the argument advanced by the learned counsel for the petitioners that their case ought t have been considered under the instructions prevailing prior to issuance of Scheme, dated 5.5.2003. In that regard the learned counsel has rightly placed reliance on the Division Bench judgment of this Court rendered in the case of Jai Ram (Supra). As a sequel to above discussion this petition is allowed. Accordingly, order dated 8.10.2004 (P-10) passed by the Tribunal and the order dated 6.11.2003 rejecting the claim of the petitioners are hereby quashed. The respondents are directed to reconsider the case of the petitioners for compassionate appointment and pass appropriate orders within a period of three months from today. There is no order as to costs. ( RITU BAHRI ) JUDGE 8.12.2010 ( M.M.KUMAR ) Rupi JUDGE