Himachal Pradesh High Court
Chinta Devi vs The Director Of Estates (Regions) And ... on 9 March, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 10992 of 2011 .
Decided on: 09.03.2018
Chinta Devi ...Petitioner.
Versus
The Director of Estates (Regions) and another ...Respondents.
Coram
r to
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes.
For the petitioner: Mr. Kulbhushan Khajuria, Advocate, vice Mr. Jitender P. Ranote, Advocate.
For the respondents: Mr. Shashi Shirshoo, Central Government Standing Counsel.
Vivek Singh Thakur, Judge. (Oral) It is undisputed that petitioner is wife of a deceased employee of respondents, who expired on 2 nd July, 2006 in an accident while serving as Accountant in the office of respondent No. 2. After his death, petitioner, who is a matriculate, had applied for compassionate appointment ::: Downloaded on - 20/05/2018 21:11:35 :::HCHP 2 with the respondents vide application, dated 14 th August, 2006 (Annexure P6) with request to consider her case for .
appointment at her native place, i.e. Shimla, being a single lady. Her request was rejected by the respondents and vide communication, dated 26th December, 2006 (Annexure P8), it was conveyed that her application for appointment as Lower Division Clerk on compassionate grounds was considered but could not be acceded to. She had re submitted request for compassionate appointment vide application, dated 11th December, 2008 (Annexure P7).
2. A legal notice was also issued to the respondents through an Advocate requesting for compassionate appointment and also for assigning reasons for denying the appointment to the petitioner on compassionate grounds.
Respondents never responded to the said notice whereupon the present petition stands filed.
3. It is evident from perusal of communication, dated 27th January, 2009 (Annexure P9) sent by Assistant Estate Manager, Nagpur to Assistant Director of Estates ::: Downloaded on - 20/05/2018 21:11:35 :::HCHP 3 (Regions), New Delhi, in continuation to representation of petitioner, dated 11th December, 2008, that it was .
recommended that petitioner could be accommodated against the post of LDC lying vacant in that office with effect from 21st April, 2008 and question of obtaining approval from Screening Committee did not arise if she was recommended against the above vacancy as per DoPT O.M. No. 14014/6/94Estt (D), dated 9th October, 1998.
4. Petitioner has also placed on record office memorandum, dated 9th October, 1998 (Annexure P11) issued by Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training), whereby revised 'Scheme' for compassionate appointment under the Central Government has been circulated. The object of this scheme is to grant appointment on compassionate grounds, to a dependent family member of a Government servant dying in harness or retiring on medical grounds, thereby leaving his family in penury and without any means of livelihood, to relieve the family of the Government servant ::: Downloaded on - 20/05/2018 21:11:35 :::HCHP 4 concerned from financial destitution and to help it get over the emergency.
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5. As per clause 2 of the Scheme, spouse also falls in category of dependent family member of a Government servant who dies while in service. 'Determination/ Availability of Vacancies' for compassionate appointment of which reads as under:
r to has been provided under a separate Head, relevant portion "(a) Appointment on compassionate grounds should be made only on regular basis and that too only if regular vacancies meant for that purpose are available.
xxx xxx xxx
(e) Employment under the scheme is not confined to the Ministry/Department/Office in which deceased/medically retired Government servant had been working.
Such an appointment can be given anywhere under the Government of India depending on availability of a suitable vacancy meant for the pui ......ate appointment.
(f) If sufficient vacancies are not available in any particular office 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 ::: Downloaded on - 20/05/2018 21:11:35 :::HCHP 5 at an early date appointment on compassionate grounds to those in the waiting list."
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(Emphasis added)
6. In reply to the petition, it has been averred that to assign the vacancy for compassionate appointment in small departments, like the respondentdepartment, direct vacancies in group C and D posts, arising each year for three or more preceding years, are to be taken into consideration and 5% of vacancies with reference to the grand total of vacancies of such years is to be allocated for compassionate appointment and it would be subject to condition that no compassionate appointment was/has been made by the department for three years or the number of years taken over and above three years for locating vacancy under 5% quota for compassionate appointment.
7. According to respondents, husband of petitioner had died on 2nd July, 2006 and though, the vacancy in the department had arisen on 21st April, 2008, but locating the same for compassionate appointment of the petitioner would have amounted to allocation of 100% vacancies to the ::: Downloaded on - 20/05/2018 21:11:35 :::HCHP 6 compassionate appointment and, therefore claim of petitioner for compassionate appointment was not acceded .
to.
8. Office memorandum, dated 9th October, 2006, (Annexure I) issued in continuation to circular, dated 9 th October, 1998 has also been placed on record by r to respondents, which provides as under:
"The undersigned is directed to invite attention to this Department's O.M. No. 14014//6/94Estt. (D) dated the 9 th October, 1998, as amended from time to time containing the Scheme for Compassionate Appointment. Para 7 (b) of this O.M. provides that compassionate appointment can be made upto a maximum of 5% of vacancies under Direct Recruitment quota in any Group 'C' or 'D' post.
2. Pursuant to a demand raised by the Staff Side in the Standing Committee of the National Council (JCM) for review of the compassionate appointment policy, instructions have been issued vide O.M. No. 14014/3/2005Estt. (D) dated the 14th June, 2006 prescribing a certain method of calculation of vacancies under 5% quota for compassionate appointment. The provisions of the O.M. dated 14th June, 2006 have sought to enable the Ministries to locate vacancies under 5% ::: Downloaded on - 20/05/2018 21:11:35 :::HCHP 7 quota, in order to absorb the most deserving cases.
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3.The Scheme has been further examined, keeping in view the problem of non availability of vacancies within the prescribed limit of 5% of Direct Recruitment vacancies within the prescribed limit of 5% of Direct Recruitment vacancies in Group 'C' and 'D' posts (excluding technical posts), persisting in the small Ministries/ Departments, even after issue of this Department's O.M. dated 14th June, 2006. It may happen that small Ministries/Departments may not be able to make a single compassionate appointment for a number of yeas due to nonavailability of adequate direct recruitment vacancies in Group 'C' and 'D' posts arising in a year. Thus, this Department's O.M. dated 14th June, 2006 providing for a relaxed method for determination of vacancies under 5% quota, may not actually provide any relief to such small Ministries/Departments.
4. Accordingly, it has been decided that the small Ministries/Departments may apply a more liberalized method of calculation of vacancies under 5% quota for compassionate appointment. The small Ministries/Departments, for the purpose of these instructions, are defined as organization where no vacancy for compassionate appointment could be located under 5% quota for the last three years. Such small Ministries/ Departments may add up to the total of DR vacancies in Group 'C' and 'D' posts ::: Downloaded on - 20/05/2018 21:11:35 :::HCHP 8 (excluding technical posts) arising in each year for 3 or more preceding years and calculate 5% of vacancies with .
reference to the grand total of vacancies of such years, for locating one vacancy for compassionate appointment. This is subject to the condition that no compassionate appointment was/has been made by the Ministries/ Departments during 3 years or number of years taken over and above 3 years for locating one vacancy under 5% quota.
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5. The instructions contained in the O.M. No. 14014/6/94Estt. (D) dated 9 th October, 1998, as amended from time to time, stand modified to the extent mentioned above.
6. The above decision may be brought to the notice of all concerned for information, guidance and necessary action.
7. Hindi version will follow."
9. As clarified in memorandum, dated 9th October, 2006, this clarificatory office memorandum has been issued enabling the Ministries/Departments to extend the benefit of compassionate appointment in order to absorb the most deserving cases. It has been clarified in the said office memorandum that keeping in view the problem of non availability of vacancies within the prescribed limit of 5% of ::: Downloaded on - 20/05/2018 21:11:35 :::HCHP 9 Direct Recruitment vacancies in Group 'C' and 'D' posts persisting in small Ministries/ Departments, it may happen .
that such Ministries/ Departments may not be able to make a single compassionate appointment for number of years due to nonavailability of adequate direct recruitment vacancies in Group 'C' and 'D' posts arising in a year and, therefore, method for determining vacancies under 5% quota, which was already relaxed vide office memorandum, dated 14th June, 2006, has further been liberalized by providing a method of calculation of vacancies under 5% quota for compassionate appointment by stating that the small Ministries/Departments, for the purpose of these instructions, are defined as organizations where no vacancy for compassionate appointment could be located under 5% quota for the last three years and such small Ministries/ Departments may add up the total of DR vacancies in Group 'C' and 'D' posts (excluding technical posts) arising each year for three or more preceding years for calculating 5% of vacancies with reference to the grand total of vacancies of ::: Downloaded on - 20/05/2018 21:11:35 :::HCHP 10 such years for locating one vacancy for compassionate appointment.
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10. The aforesaid clarification is also to be read with clause (e) of Determination/Availability of Vacancies contained in the Scheme for Compassionate Appointment (Annnexure P11), which provides that employment under the scheme is not confined to the Ministry/Department/office in which deceased servant had been working, but, such an appointment can be given anywhere under the Government of India depending on availability of suitable vacancy meant for the purpose of compassionate appointment. Further clause (f) under the same Head of the Scheme provides that if the sufficient vacancies are not available in any particular office, then, 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 Government of India to provide, at any early date, ::: Downloaded on - 20/05/2018 21:11:35 :::HCHP 11 appointment on compassionate grounds to those in the waiting list.
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11. In instant case, communication, dated 26th December, 2006 (Annexure P8), conveying the rejection of request of the petitioner, is subsequent to clarification/Office Memorandum, dated 9th October, 2006 (Annexure I). The said communication is nonspeaking and uninformed. It does not disclose as to whether provisions of the scheme providing for determination/availability of vacancies notified vide Office Memorandum, dated 9th October, 1998 (Annexure P11) were adhered to or not and as to whether the liberalized method for calculating the vacancies circulated vide Office Memorandum, dated 9th October, 2006 (Annexure I), was ever applied in case of the petitioner or not.
Further, there was no response to the legal notice, dated 27 th August, 2011.
12. So far as plea of the respondents taken in reply to the petition is concerned, it does not disclose that there was no vacancy available at the time of rejection of request ::: Downloaded on - 20/05/2018 21:11:35 :::HCHP 12 of the petitioner in the entire Ministry/Department. There is nothing stated about taking up matter with other .
departments/Ministries, if ever taken up. The reply is also silent about the fate of the recommendations made by the Assistant Estate Manager on 27th January, 2009 (Annexure P9) on arising of the vacancies in the office with effect from 21st April, 2008.
13. to There is no record to reflect that case of the petitioner was ever considered in light of the provisions of Determination/Availability of Vacancies contained in Scheme for Compassionate Appointment.
14. Petitioner has a basic human and legal right to know the grounds and reasons for rejection of her claim.
Nonspeaking and uninformed decision smacks mala fide and arbitrariness. Arbitrariness, being anti thesis of 'Rule of Law', amounts to violation of Article 14 of the Constitution of India. Thus, impugned rejection of claim of petitioner warrants interference.
::: Downloaded on - 20/05/2018 21:11:35 :::HCHP 1315. In view of above discussion, present petition is allowed, communication, dated 26th December, 2006 .
(Annexure P8), conveying rejection of claim of the petitioner, is quashed and set aside with a direction to the respondents to consider the case of the petitioner afresh in light of Office Memorandum, dated 9th October, 1998 (Annexure P11) and all clarificatory office memoranda issued subsequent thereto, including Office Memorandum, dated 9th October, 2006 (Annexure - I) and to decide the same, in accordance with law, within four months from today and offer her appointment in case she is found entitled to the same.
16. Needless to say that in case petitioner is not considered to be entitled for compassionate appointment, a speaking and reasoned order shall be passed in that regard, under intimation to the petitioner, after providing personal hearing to her, and obviously, petitioner shall have liberty to assail any decision adversely affecting her legal rights before ::: Downloaded on - 20/05/2018 21:11:35 :::HCHP 14 competent Court/forum, in accordance with law, if so advised.
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17. The writ petition is disposed of in aforesaid terms alongwith all pending applications, if any.
(Vivek Singh Thakur) Judge March 09, 2018 ( rajni ) ::: Downloaded on - 20/05/2018 21:11:35 :::HCHP