IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. NO. 622 of 2006 Reserved on : 6.6.2008 Decided on: 20.06.2008. Desh Raj ..Petitioner. Versus Union of India & Others Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge Whether approved for reporting?1 Yes. For the Petitioner : Mr. R. D. Kaundal, Advocate. For the Respondents : Mr. Sandeep Sharma, Asstt. Solicitor General of India. RAJIV SHARMA, J. The brief facts necessary for the adjudication of this petition are that the petitioner’s father died on 11.12.1998 while he was serving as Cook in the Central Industrial Security Force. The petitioner’s mother submitted an application seeking compassionate appointment for the petitioner dated nil. The case was considered by the duly constituted Committee in the month of February, 2000. The Commandant / Recruitment informed the Inspector General, CISF North Sector, Headquarters, Delhi on 16.3.2000 that the matter was examined by the headquarters in accordance with the instructions/ directions issued by the 1 Whether reporters of Local Papers may be allowed to see the Judgment ? - 2 - Establishment and Training Department and it was found that the candidate was not eligible for appointment on compassionate grounds as per the instructions / directions. The petitioner’s mother made a representation to the Minister, Consumer Affairs and Public Distribution, Govt. of India, New Delhi to take up the matter with the authorities for compassionate appointment. The respondents informed the Minister on 22.1.2001 that the petitioner being only 7th pass was not eligible for appointment in CISF even in Group ‘D’ post. It appears from the record that the petitioner’s mother had informed the authorities that her son had passed middle standard examination in the year, 2001. The petitioner approached this Court by way of C.W.P.No.1633/2002 seeking direction to the respondents to consider his case for compassionate appointment. The Civil Writ Petition No.1633 of 2002 was disposed of by this Court on 27.12.2004 and the petitioner was directed to make an application to the respondents for considering his case for compassionate appointment. The petitioner submitted an application on 21.2.2005 to the competent authority. The case of the petitioner was rejected and the decision was conveyed to him on 30.3.2005 (R-2). It was conveyed to the petitioner by way of order dated 30.3.2005 that the petitioner was ineligible for appointment to the post of Follower category (Group ‘D’) on compassionate grounds for which the minimum educational qualification is 8th class pass. However, he was further informed that the organization did not have a vacancy of Follower in any trade for compassionate appointment against the prescribed ceiling of 5% quota. The petitioner’s mother met the Director General of CISF on 26.9.2005 seeking appointment for her son. The decision was conveyed to the petitioner on - 3 - 19.10.2005 by the Assistant Inspector General/Recruitment whereby the earlier decision dated 30.3.2005 was referred to and it was reiterated that there was no vacancy available of Follower in any trade for compassionate appointment against the prescribed ceiling of 5% quota and it was not possible to appoint him in the Follower trade. Mr. R.D. Kaundal, Advocate had strenuously argued that the respondents have taken contradictory stand as is evident from the documents placed on record by the respondents and the reply. He then contended that his client was required to be considered for appointment by invoking relaxation clause. Mr. Sandeep Sharma, Assistant Solicitor General of India had supported the decision dated 30.3.2005 and 19.10.2005. I have heard the learned counsel for the parties and also perused the records carefully. What emerges from the facts enumerated hereinabove, is that the petitioner lost his father on 11.12.1998. His mother made an application seeking compassionate appointment for her son. The respondents though have considered the case of the petitioner in the month of February, 2000 but he was not found eligible to be appointed on compassionate grounds. The text of decision dated 16.3.2000 reads thus: “Kindly refer to your office letter No.E- 32033/44/NS/Adm.1/99-1060 dated 04-08-1999 under which the case of compassionate appointment of Shri Desh Raj son of CISF No.882240329 Late Cook Dalti was referred to this HQrs. The aforesaid matter was examined by this HQrs in accordance with the instructions/direction issued by the Estt. and Training Department and found not eligible for appointment on - 4 - compassionate ground as per the above instructions/directions. It is regretted that concerned applicant may kindly be informed that his case for compassionate appointment was examined by this HQrs and found him ineligible to appoint him.” The petitioner’s mother as noticed above, have also approached the Hon’ble Minister for Consumer Affairs and Public Distribution. The Minister was informed on 22.1.2001 that the petitioner was not in possession of requisite qualification i.e. middle standard for being appointed against Group ‘D’ posts. The text of the letter dated 22.1.2001 reads thus : “It is intimated that the case in respect of Shri Deshraj S/o late Dalti Ram for appointment in CISF on compassionate grounds was already examined in this HQrs. As per the guidelines issued by the Department of Personnel & Training on the subject. Since, educational qualification of Shri Desh Raj is only 7th class pass, he is not eligible for appointment in CISF even in Group ‘D’ posts, as the minimum educational qualification for appointment in Group ‘D’ post is class VIII pass. Hence we have already regretted our inability to appoint Shri Desh Raj in CISF on compassionate grounds vide our letter dated 16.3.2000.” The respondents have also placed on record the communication dated 7th May, 2004 sent to the petitioner’s mother by the Assistant Inspector General/Recruitment, the text of the letter dated 7.5.2004 reads thus: “I have been directed to inform you regarding your application dated 10.3.2004 addressed to Hon’ble Dy. Prime Minister for the cases of recruitment on compassionate ground cases are being scrutinized accordingly as per the instruction/order issued by the Government of India from time to - 5 - time. Compassionate appointment in Group ‘C and ‘D’ may be made only to the extent of 5% vacancy falling under direct recruitment quota according to the instructions/orders issued by the Government of India. Your son Sh. Desh Raj was not found fit for appointment in Group ‘D’ (Follower) post according to prescribed educational qualification. His case for appointment on compassionate ground in the Group ‘D’ category of Follower was considered in 2000 by duly constituted board by the competent authority but was not acceded to due to non availability of a vacancy. Hence, it is regretted to inform you that this office is unable due to non availability of vacancy for appointment in the post of Follower on compassionate ground.” This Court in C.W.P.No.1633 of 2002 preferred by the petitioner had directed him to make a representation while disposing of the petition on 27.12.2004. He submitted an application on 21.2.2005. The case of the petitioner was again rejected vide order dated 30.3.2005 reiterating that no vacancy was available and even though the petitioner was now educationally qualified for being offered Group ‘D’ posts. The relevant extract of order dated 30.3.2005 reads thus: “Shri Desh Raj S/o Late Cook Dalti Ram has submitted his application dated 21.2.2005 requesting to consider his case for appointment on compassionate grounds afresh as now he has passed middle school examination. In compliance with the said judgment order, the competent authority after having gone through the entire case record, have found that now the petitioner’s educational qualification is middle standard. Therefore, he is eligible for appointment to a post in the Follower category (Group ‘D’) posts on compassionate grounds for which the minimum educational qualification is 8th class pass. As per instructions contained in DOP&T OM dated 9.10.98, - 6 - compassionate appointment can be made only to the extent of 5% vacancy falling under direct recruitment quota. At present we do not have a vacancy of Follower in any trade for compassionate appointment against the prescribed ceiling of 5% quota. Hence, it is regretted that Shri Desh Raj (Petitioner) cannot be given appointment on compassionate grounds in any Group ‘D’ posts due to non availability of a vacancy.” The petitioner’s mother met the Director General of respondent-Organisation on 26.9.2005. She was conveyed the decision on 19.10.2005 reiterating the earlier stand, as noticed above. Mr. R.D. Kaundal, Advocate had drawn the attention of the Court to Swamy’s Compiliation on Reservations and Concessions, Eighth Edition. In Section 6 of this Compiliation, dealing with compassionate appointments there is a clause for relaxation which reads thus: “1. Relaxations (1) Departments are competent to relax temporarily educational qualifications in the case of appointment at the lowest level, i.e., Group ‘D’ or LDC post, in exceptional circumstances where the condition of the family is very hard. Such relaxation will be permitted up to a period of two years beyond which no relaxation of educational qualifications will be admissible and the services of the persons concerned, if still unqualified, are liable to be terminated. (2) Recruitment procedure is relaxed, i.e., without the agency of the Staff Selection Commission or Employment Exchange. - 7 - (3) Wherever necessary, the upper age-limit is relaxed. But the lower age-limit below 18 years is not relaxed. Persons below the age of 18 years should not be considered for appointment on compassionate grounds. (4) No clearance is required from Surplus Cell of the Department of Personnel and Training/Directorate General of Employment and Training. 2. Exemption of widows from educational qualification Where a widow is appointed on compassionate ground to a Group ‘D’ post, she will be exempted from the requirements of educational qualifications, provided that duties of the post can be satisfactorily performed without having the educational qualification of Middle standard prescribed in the Recruitment Rules.” Mr. R.D. Kaundal, on the basis of this relaxation clause had strenuously argued that the case of the petitioner for relaxation was to be considered by the duly constituted Committee. There is considerable force in the submission of Mr. R.D.Kaundal. The Committee while considering the case of the petitioner in the month of February, 2000 was required to take decision to relax educational qualifications for a period of two years to enable him to improve his qualification. The petitioner at the time of consideration of his case in the month of February, 2000 had passed 7th standard examination and in another year was bound to acquire middle standard qualification. The Committee was bound to take into consideration the relaxation clause while dealing with the application preferred by the petitioner seeking compassionate appointment. - 8 - Now, the Court has to consider the manner in which the case of the petitioner had been considered from time to time by the respondents. In the letter dated 16.3.2000, the only ground mentioned while rejecting the case of the petitioner was that he was not found eligible for appointment on compassionate ground as per the instructions. However, in communication addressed to the Minister, Consumer Affairs and Public Distribution (Annexure P-1) dated 22.1.2001 for the first time, it is mentioned that the petitioner was not eligible for appointment in CISF even in Group ‘D’ posts, as the minimum educational qualification for appointment in Group ‘D’ post was class VIII pass. However, strangely enough in communication dated 7.5.2004 sent by the Assistant Inspector General/Recruitment to the petitioner’s mother, it is mentioned categorically that the petitioner was not considered for appointment due to non-availability of a vacancy. The text of the entire letter dated 7.5.2004 has already been reproduced hereinabove. In the reply to sub-para (e) of Para - 4, following averments have been made : “He was under Matric and thus not eligible for the post of Constable for which we had vacancies at that time.” In communication dated 7.5.2004, it is mentioned that there were no vacancies, however, in the reply, it is mentioned that vacancies were available in the year 2000 but the petitioner was under Matric. This Court does not approve the manner in which the contradictory stand had been taken by the respondents from time to time while dealing with the case of the petitioner for appointment on compassionate ground. This - 9 - Court had directed the respondents to consider the case of the petitioner by submitting an application seeking compassionate appointment while disposing of the C.W.P.No.1633/2002 on 27.12.2004. His case has been rejected, as noticed above, on 30.3.2005. It is clear from the order dated 30.3.2005 that the petitioner was though found eligible for Follower post but vacancies were not available according to this order. The same position has been reiterated in letter dated 19.10.2005. However, in the reply, as noticed above, it has come that the vacancies were in fact available in the year, 2000. The stand of the respondents in the reply is that there is shortage of vacancies in CISF against which the petitioner could be offered appointment i.e. Group ‘D’ posts. It is evident from the reply that in the year 2004, 116 dependents applied for Group ‘D’ on compassionate basis and only 3 dependents were accommodated in the year, 2004. In the year 2005, no vacancy in Group ‘D’ occurred for compassionate appointment and none of the dependents were considered for compassionate appointment in this year. However, in the year 2006, 13 vacancies in Group ‘D’ posts occurred, whereas 248 dependents were considered for Group ‘D’ posts and only 13 dependents were given appointment on compassionate grounds. What emerges from the above discussion is that as per the reply filed by the respondents, vacancies were available in the year, 2000 in Group ‘D’ against which the petitioner could be offered appointment. The case of the petitioner has been rejected on the ground that he was not qualified at that time. The Committee while considering the case of the petitioner in the year 2000 had not taken into consideration the relaxation clause whereby the educational qualification of the petitioner - 10 - could be relaxed for two years to enable him to acquire the qualification. The Committee was bound to invoke relaxation clause and after doing that exercise, the offer of appointment was to be made to the petitioner on compassionate grounds. The sequence of events as per pleadings of the parties is that initially in decision dated 16.3.2000, it was not mentioned that the petitioner was not qualified. It is only in the communication addressed to the Minister for the first time, it was mentioned that the petitioner was not in possession of educational qualification. In communication dated 7.5.2004, it is mentioned that the vacancies were not available. This stand as also is contrary to the reply filed. In communication dated 30.3.2005 the petitioner though found eligible for being appointed in Follower post, but was not offered appointment due to non-availability of posts. It is thus evident that the respondents have not considered the case of the petitioner in accordance with law and had been shifting their stand from time to time resulting in denial of appointment to the petitioner on compassionate grounds. The respondents have also not spelt out clearly for which year the petitioner has been considered after 2000. If the respondents had prepared a panel, the case of the petitioner was required to be considered as and when the vacancies became available. Though, the respondents have given the details of the years, 2004, 2005 and 2006 but they are silent whether the case of the petitioner was considered for these years or not. Consequently, in view of the observations made hereinabove, it is declared that the petitioner’s case was bound to be considered for compassionate appointment against Group ‘D’ posts by - 11 - invoking relaxation clause to enable him to acquire middle standard qualification and alternatively, the respondents were bound to empanel the name of the petitioner against the available 5% Group ‘D’ posts and was to be considered against them as and when the vacancies had arisen. Consequently, the Writ Petition is allowed. The respondents are directed to consider the case of the petitioner now afresh in view of the observations made hereinabove, for group ‘D’ post. This exercise will be undertaken by the respondents within a period of eight weeks from today. No costs. ( Rajiv Sharma ), Judge. 20th June, 2008. (GR)