WP(C) 5316/2010 BEFORE HON’BLE THE CHIEF JUSTICE MR.MADAN B LOKUR HON’BLE MR.JUSTICE T. NANDAKUMAR SINGH JUDGMENT AND ORDER (T.Nandakumar Singh,J) By this writ petition, the petitioner, who was once in the waiti ng list of applicants approved for appointment under relaxation of normal Recrui tment Rules in the cadre of Postman/MG by the Circle Selection Committee held on 23.09.1997 for compassionate appointment under the Central Government Scheme fo r compassionate appointment dated 09.10.1998; but vide Postal Directorate Memo N o.SPB-1 dated 08.02.2001, system of keeping the waiting list was abolished, is c hallenging the judgment and order of the Central Administrative Tribunal (CAT) d ated 30.08.2010 passed in Original Application (OA) No.223 of 2010 dismissing th e O.A No.223/2010 filed by the writ petitioner for setting aside the impugned le tter dated 26.07.1999 issued by the authority concerned terminating the service of the writ petitioner and order dated 27.07.2009 passed by the Post Master Gen eral, Assam Circle, Guwahati-1 and also for a direction to reinstate the writ pe titioner to the post of Postman or any other equivalent post in terms of the die -in-harness scheme of the Central Government dated 09.10.1998. [2] Heard Mr.N.Dhar, learned counsel appearing for the petitioner an d also Ms R.Borah, learned Central Govt Counsel appearing on behalf of the respo ndents. P R O L O G U E [3] This case has a chequered history inasmuch as the present petiti oner approached this court for the third time for the same relief for a directio n to the respondents to appoint him in the cadre post of Postman/MG under the di e-in-harness scheme of the Central Government dated 09.10.1998. [4] For deciding the matter in dispute in the present writ petition, this court requires to make a quick curiosity of the salient features of the sc heme of the Central Government for compassionate appointment under the office Me morandum issued by the Government of India, Ministry of Personnel, Public Grieva nces and Pension (Department of Personnel & Training), New Delhi 110001, October 9 1998. [5] The scheme started with the opening words the existing instruct ions making compassionate appointment under the Central Government have since be en reviewed in the light of various court judgments and other decisions includin g those taken on the various recommendations contained in the 5th Central Pay C ommission Report as well as the study report of 1990 and 1994 prepared by the De partment of Administrative Reforms and Public Grievances on the subject and they have, accordingly been revised/simplified and consolidated as in the scheme whi ch will supersede all the existing instructions on the subject. [6] The very object of the scheme is to grant appointment on compass ionate ground to a dependant family member of the Government servant died in har ness or who is retired on medical ground, thereby leaving his family in penury a nd without any means of livelihood, to revive the family of the Government serva nt concerned from financial destitution and to help tide over the emergency. [7] For the present case, para 7 and 8 of the die-in-harness scheme dated 09.10.1998 are relevant and, accordingly, quoted hereunder: 7. DETERMINATION / AVAILABILITY OF VACANCIES (a) Appointment on compassionate grounds should be made only on regular basi s and that too only if regular vacancies meant for that purpose are available. (b) Compassionate appointments can be made up to a maximum of 5% of vacancie s falling under direct recruitment quota in any Group ’C’ or ’D’ post. The appoi nting authority may hold back up to 5% of vacancies in the aforesaid categories to be filled by direct recruitment through Staff Selection Commission or otherwi se so as to fill such vacancies by appointment on compassionate grounds. A perso n selected for appointment on compassionate grounds should be adjusted in the re cruitment roster against the appropriate category viz SC/ST/OBC/General dependin g upon the category to which he belongs. For example, if he belongs to SC catego ry he will be adjusted against the SC reservation point, if he is ST/OBC, he wil l be adjusted against ST/OBC point and if he belongs to General category, he wil l be adjusted against the vacancy point meant for General Category. (c) While the ceiling of 5% for making compassionate appointment against reg ular vacancies should not be circumvented by making appointment of dependent fam ily member of Government Servant on casual/daily wage/ad-hoc/contract basis agai nst regular vacancies, there is no bar to considering him for such appointment i f he is eligible as per the normal rules/orders governing such appointments. (d) The ceiling of 5% of direct recruitment vacancies for making compassiona te appointment should not be exceeded by utilizing any other vacancy e.g., sport s quota vacancy. (e) Employment under the scheme is not confined to the Ministry/Department/O ffice in which deceased/medically retired Government servant had been working. S uch an appointment can be given anywhere under the Government of India depending upon availability of a suitable vacancy meant for the purpose of compassionate appointment. (f) If sufficient vacancies are not available in any particular offices to a ccommodate 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 a n early appointment on compassionate grounds to those in the waiting list. 8. BELATED REQUESTS FOR COMPASSIONATE APPOINTMENT. (a) Ministries/Departments can consider requests for compassionate appointme nt even where the death or retirement on medical grounds of a Government servant took place long back, say five years or so. While considering such belated requ ests it should, however, be kept in view that the concept of compassionate appoi ntment is largely related to the need for immediate assistance to the family of the Government servant in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should norm ally be taken as adequate proof that the family had some dependable means of sub sistence. Therefore, examination of such cases would call for a great deal of ci rcumspection. The decision to make appointment on compassionate grounds in such cases may, therefore, be taken only at the level of the Secretary of the Departm ent/Ministry concerned. (b) Whether a request for compassionate appointment is belated or not may be decided with reference to the date of death or retirement on medical ground of a Government Servant and not the age of the applicant at the time of considerati on. [8] On quick and attentive glimpse of the die-in-harness scheme of t he Central Government dated 09.10.1998 in view of the issue to be decided in the present writ petition, it is crystal clear that (1) appointment on compassionat e ground should be made only on regular basis that too only if regular vacancy m eant for that purpose is available; (2) compassionate appointment can be made up to a maximum of 5% of the vacancies falling under the direct recruit quota in a ny group-C and D posts; (3) while the ceiling of 5% for making compassionate app ointment against regular vacancies should not be circumvented by making appointm ent of dependant family member of Government servant on casual/daily wage/ad ho c/contract basis against regular vacancy, there is no bar to consider him for su ch appointment, if he is eligible as per the normal rules/orders governing such appointment; and (4) if sufficient vacancies are not available in any particular office to accommodate the person in the waiting list for compassionate appointm ent it is open to the Administrative Ministry/Department to take up the matter w ith other Minister/Department/Office of the Government to provide an early appoi ntment on compassionate ground to those in the waiting list and (5) to relieve t he family of the Government servant concerned from financial destitution and to help it get over the emergency. FACTUAL BACKGROUND & SEQUENCE OF EVENTS [9] The writ petitioner is the dependant of Shri Phani Bhushan Paul, Group-D, P & T, Disp, Silchar, who died in harness on 27.07.1995. The case of t he petitioner was considered by the Circle Selection Committee, in terms of the die-in-harness scheme of the Central Government and approved for appointment und er the relaxation of the normal Recruitment Rules in the cadre of the Postman/MG on compassionate ground in response to his application dated 25.09.1995. His na me was in the waiting list of approved candidates for appointment and, according ly, writ petitioner had been informed under the letter of the APMG (Staff) of th e office of the Chief Postmaster, Assam Circle, Guwahati dated 04.11.1997. Thoug h the petitioner was approved for appointment on compassionate appointment, he w as not appointed in 1997 because of unavailability of vacancy in the 5% quota. B ut purely on humanitarian ground and sympathy, in order to mitigate the financia l hardships of the dependant of late Phani Bhushan Paul (petitioner), even if pe titioner could not be appointed against the limited 5% quota of the direct recru itment for compassionate appointment, Senior Superintendent of Post Offices, Cac har District, Silchar, vide Memo No.B1/Rectt/Relax/Misc. Dated 22.12.1998 direct ed engagement of the petitioner on short term duty in the unfilled vacancy of Po stman cadre (unfilled vacancy which was not within 5% quota for compassionate ap pointment) with clear understanding that he cannot claim any seniority/pay benef it in future. [10] In pursuance of the said letter of the SSPO, Silchar, petitioner was engaged on short term duty in the unit of the Assistant Superintendent of P ost Offices and kept attached to G.C.College against an unfilled vacancy (not wi thin the 5% quota of compassionate appointment) until further order; vide order of the Assistant Superintendent of Post Offices, Silchar North Sub-Division, Sil char, dated 28.12.1998. On 29.12.1998 petitioner joined the short-term duties in G.C.College Sub Post Office, Silchar. The petitioner joined the short term appo intment as Postmaster with the open eye that his engagement is only on short ter m basis and cannot claim any seniority/pay benefit in future for such short term engagement and kept in panel for absorption in the future relaxation vacancies. [11] It is also clear from the term of engagement of the petitioner a s Postmaster cadre that he was not engaged against the earmarked vacancy for com passionate appointment. The short term engagement of the petitioner as Postmaste r under the said engagement order dated 28.12.1998 came to an end as the candida te for appointment in Postmaster cadre was allotted and posted in the unit where the petitioner was working as Postmaster on short term engagement i.e. Post off ice of G.C.College, Silchar North Division, and accordingly, engagement of the p etitioner as Post master was terminated vide order of the Assistant Superintende nt, Post Offices, North Sub Division, Silchar, memo being No.B2/K.Roy dated 26.0 7.1999. Again on humanitarian ground, the Senior Superintendent of Post Offices, Cachar Division Silchar under his letter being No.B1-Rectt/Relax/Misc dated 07. 01.2000 requested the SPM Haflong, S.O to obtain the consent of the petitioner b efore engagement in the post of Postman on short term duty that he cannot claim any seniority/pay benefit in future in such short term engagement. On 11.01.2000 , the petitioner again joined in the cadre of Postman in Haflong Sub Post Office till the petitioner was discharged from the cadre post of Postman in Haflong Su b Division under the instruction from the Sub Divisional Inspector of Post Offic es, Haflong dated 24.01.2001. Under the Postal Directorate Memo No.24-1/99-SPB-I dated 8.2.2001 the system of maintaining waiting list of candidate for appointm ent on compassionate ground was abolished. By the letter dated 22.06.2001 inform ed the petitioner that as the system of maintaining waiting list of candidates f or appointment on compassionate ground had been discontinued, the petitioner was to give his willingness at an early date for taking up the matter with other Mi nistries along with the Directorate for appointment in other departments. The ap plicant conveyed his willingness for appointment in other department, however, h e requested the Postmaster General, Assam Region to regularise him in the vacant post against which he was continuously working. Under letter dated 03.09.1991, petitioner was informed that he would be absorbed in the cadre in due course as there was no vacancy by then and he had been informed that by letter dated 24.08 .2001, keeping of waiting list of candidate for appointment on compassionate gro und was discontinued and Directorate had decided that the petitioner would be co nsidered for the post of Gramin Dak Sevak (GDS) and accordingly offered the post of GDS to the writ petitioner. But the petitioner did not opt for the GDS; and, accordingly, the said offer was lapsed after one year. [12] The petitioner was again engaged as Postman in the cadre post of Postman in the Haflong Mukhaya Dak Ghar, under the instruction of the Sub Divis ional Inspector of Post Offices Haflong. Later on as there was no vacancy in the 5% quota for compassionate appointment in the Postman cadre, in the Haflong Sub Post Office, the Sub Divisional Inspector of Post Offices, Haflong Sub Division , Haflong under his letter dated 09.07.2002 requested the Postmaster, Haflong MD G NC Hills 788819 to relieve the petitioner positively. Accordingly, the petitio ner had been relieved from his short-term engagement as Postman in the cadre of Postman. [13] Petitioner approached the Central Administrative Tribunal (CAT) by filing OA No.213 of 2002 for a direction to the respondents to appoint him as Postman in the Postman cadre on compassionate ground for, according to the peti tioner; there was vacancy in the 5% quota for appointment on compassionate groun d. The learned CAT vide judgment and order dated 11.10.2002 dismissed the OA No. 213 of 2002 for the reason that the petitioner has no choice for the post for ap pointment under the die-in-harness scheme of the Central Government and by the l etter dated 03.09.2001 he had been asked to give his consent for appointment to the post of GDS and also that under the scheme for die-in-harness, appointment s hould be only within the ceiling limit of 5% of direct recruit vacancies in a ye ar. The learned CAT was of the opinion in the said judgment and order dated 11.1 0.2002 that the action of the respondent in offering the alternative appointment of GDS cannot be faulted and writ petitioner has not acquired any right to regu lar appointment outside the quota for compassionate appointment simply because h is name was included in the waiting list for appointment on compassionate ground ; even if the petitioner had worked in short term vacancies i.e. leave vacancy. [14] Against the said judgment and order of the learned CAT dated 11. 10.2002 for dismissing the OA No.213 of 2002, the writ petitioner filed the Writ Petition being WP(C) No.8141 of 2002 before this Court. The Division Bench of t his Court vide common judgment and order dated 27.09.2005 disposed of the writ p etition by setting aside the judgment and order of the learned CAT dated 11.10.2 002 and further directing the respondents to consider the case of the petitioner for appointment against either Group C or D post as per the eligibility and if some vacancies are available as on today, their case will be considered against the aforesaid post along with other waiting candidates, if any, as per the exist ing rules and in case, no vacancy is there as on today, i.e. today their names w ill be registered, their case will be considered, as and when vacancy arise. [15] Pursuant to the direction of this Court in the judgment and orde r dated 27.09.2005 passed in the WP(C) No.8141 of 2002 filed by the petitioner, the Chief Postmaster General, Assam Circle, Guwahati passed order dated 20.04.20 06 that under the die-in-harness scheme of the Central Government, it is stipula ted that the compassionate appointment is limited to 5% of the direct recruit va cancies quota, appointment on compassionate ground can be made only if a vacancy is available for that purpose. It is a policy of the Government that compassion ate appointment will be up to the extent of 5% of the vacancies available in the current year. The Ministry of law citing the Apex Courts’ order opined that pol icy decision of the Government shall not be interfered; no Tribunal or Court can compel the Government to change its policy. However, the High Court and Adminis trative Tribunal cannot give direction for appointment of a person on compassion ate ground but can merely direct for consideration of the claim for appointment on compassionate ground under the die-in-harness scheme of the Central Governmen t. However, there was no vacancy in the 5% vacancies in the direct recruit for c ompassionate appointment under the die-in-harness scheme in the Postman cadre an d also that the petitioner has not acquired any vested right for appointment on compassionate ground simply because his name is included in the approved waiting list of candidates for appointment under the die-in-harness scheme. And accordi ngly, after due examination of the petitioner’s case sympathetically the request of the petitioner for appointment to the post of Postman in the Postman cadre w as not acceded to. Against the said order of the Chief Postmaster General, Assam Circle, Guwahati, dated 20.04.2005 petitioner again filed OA No.240/2007 in the Central Administrative Tribunal, Guwahati. The learned CAT vide order dated 20. 02.2009 disposed of the OA No.240 of 2007 and remitted back the case of the peti tioner to the respondents for reconsideration in the matter in order to provide petitioner an employment on compassionate ground and the entire exercise should be completed by the respondents within 120 days from the date of receipt of the copy of the order. [16] Pursuant to the said second order of the learned CAT dated 20.02 .2009 passed in OA No.240 of 2007 filed by the petitioner, case of the petitione r for appointment under the die-in-harness scheme had been reconsidered and pass ed order dated 27.07.2009 rejecting the case for appointment of the petitioner t o the Postman cadre post for the reason that the system of maintaining the waiti ng list of candidates for appointment under the die-in-harness scheme was abolis hed vide Postal Directorate Memo No.24-1/99-SPB-I dated 8.2.2001; petitioner who had been offered the lower post of GDS had not accepted the said post; and ther e was no vacancy in the Postman cadre post in the 5% quota for compassionate app ointment and also the case of the petitioner that vacancy in the Postman cadre a gainst the 5% quota for compassionate appointment was available, was not correct , it was not actually available for appointment under the die-in-harness scheme and also the scheme for compassionate appointment is for the purpose of providin g immediate relief and by stretch of imagination, appointment of the petitioner in the Postman cadre, if made, after 15 years cannot be an appointment for givin g immediate relief to the family of the deceased government employee under the d ie-in-harness scheme of the Central Government. [17] Against the said order of the Chief Postmaster General, Assam Ci rcle, Guwahati dated 27.07.2009, petitioner again approached the CAT, by filing OA No.223 of 2010, praying or quashing the order dated 27.07.2009 issued by the authority for terminating service of the petitioner and also for a direction to the respondents to reinstate the petitioner to the post of Postman or any other equivalent post w.e.f. the date when his service to the said post was terminated on 26.06.1999. This time the petitioner was not fortunate inasmuch as the CAT, Guwahati, vide common judgment and order dated 30.08.2010 had dismissed the OA N o.223 of 2010. In the judgment and order dated 30.08.2010 the learned CAT made a clear finding that the practice of keeping waiting list for appointment under t he die-in-harness scheme had been discontinued vide Postal Directorate letter/Me mo dated 08.02.2001. Since then the keeping of waiting list of candidates for co mpassionate appointment had been dispensed with which caused hardships to the ap proved candidates who were waiting for a quite long period. On consideration of this aspect, the Postal Directorate decided to consider case of such waitlisted candidates against the vacancies in the post of GDS (Gramin Dak Sevak) subject t o willingness and eligibility. The petitioner was offered the said post of GDS b y letter dated 03.09.2001 but the petitioner declined to accept the offer for th e post of GDS. The learned CAT also made clear finding that there was no vacancy in 5% quota for compassionate appointment in the Postman cadre during the lifes pan of the approved waiting list which include the petitioner and also that the object of granting compassionate employment is to enable the family to tide over the sudden crisis; and that as the petitioner claimed for appointment on compas sionate ground to a post of his choice i.e. in the Postman cadre after the subst antial period is over even if there is no vacancy in the 5% quota for compassion ate appointment, the Tribunal cannot issue direction to relax the ceiling of 5% of direct recruit quota for compassionate appointment and also that more than a decade had lapsed since the petitioner’s father (Phani Bhushan Paul) died in har ness on 27.07.1995. Hence, the present writ petition i.e., WP(C) No.5316 of 2010 . [18] CORE QUESTIONS (1) Whether or not, the dependant family member of a government servant who died in harness (writ petitioner) has the right for the choice of the post for a ppointment on compassionate ground under the die-in-harness scheme of the Centra l Government? (2) Whether or not, once the dependant family member of a government servant who died-in-harness is included in the approved waiting list of candidates for appointment on compassionate ground under the die-in-harness scheme of the Centr al Government has acquired the vested right for an indefinite period for appoint ment against the vacancy in 5% of the vacancies in the direct recruitment quota even if the vacancy in the direct recruit for compassionate appointment is not a vailable? [19] RAIN OF PRECEDENTS The Apex Court in Umesh Kumar Nagpal Vs State of Haryana & Ors : (JT 1994 (3) SC 525) : (1994) 4 SCC 138 had laid down the important principles and parameters f or deciding the case of compassionate appointment;- (1) Only dependants of an employee died in harness leaving his family in pen ury and without any means of livelihood can be appointed on compassionate ground ; (2) The whole object of granting compassionate appointment is to enable the family to tide over the sudden crises and to relieve the family of the deceased from financial destitution and to help it get over the emergency. (3) Offering compassionate appointment as a matter of course irrespective of the financial condition of the family of the deceased or medically retired Gove rnment servant is legally impermissible. (4) Compassionate appointment cannot be granted after lapse of reasonable pe riod and it is not a vested right which can be exercised at any time in future. [20] Para 6 of the SCC in Umesh Kumar Nagpal’s case (supra) read as f ollows: 6. For these very reasons, the compassionate employment cannot be granted a fter a lapse of a reasonable period which must be specified in the rules. The co nsideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financ ial crisis which it faces at the time of death of the sole breadwinner, the comp assionate employment cannot be claimed and offered whatever the