Delhi High Court
Smt. Shanti Devi vs Commissioner, Mcd And Ors. on 14 August, 2007
Equivalent citations: 142(2007)DLT645
Author: Hima Kohli
Bench: Hima Kohli
JUDGMENT Hima Kohli, J.
1. By way of the present petition, the petitioner has sought issuance of a writ in the nature of mandamus to the respondent, Municipal Corporation of Delhi (MCD), thereby directing it to reconsider the application of the petitioner for being appointed on compassionate grounds.
2. In a nutshell, facts of the case are that the husband of the petitioner was employed in the Horticulture Department of the MCD as a Chowkidar and he expired on 1st June, 2003 during the tenure of his service. On 11th August, 2003, the petitioner moved an application to be appointed as a Chowkidar on compassionate grounds, but the same was rejected by the MCD on 3rd March, 2006 and the petitioner was informed of the said rejection vide letter dated 29th May, 2006. Thereafter, the petitioner again applied for the same post on 21st June, 2006, but her application was rejected and vide letter dated 31st August, 2006, issued by the MCD, she was informed that since her application had already been rejected by the Compassionate Appointment Committee in its meeting dated 3rd March, 2006, therefore, her second application seeking compassionate appointment could not be reconsidered due to the lapse of three years from the date of death of her husband.
3. Learned Counsel for the petitioner submitted that the MCD had deliberately ignored the penurious and pitiable condition of the petitioner while considering her application for compassionate appointment. It was stated that the MCD had erred in not considering her case fit for compassionate appointment merely on the grounds that she had received the dues against Leave Encashment and GPF Contribution, GIS and Gratuity and was receiving a family pension of Rs. 1,600 + DA, which amounted to a total of RS. 2,500 and that the family of the petitioner was residing in its own one room set. It was submitted that the income so received was not enough to sustain a family of five, including two daughters of marriageable age and one minor son and that the family was facing extreme poverty. It was also contended that the action of the MCD in rejecting the application of the petitioner vide order dated 3rd March, 2006 was vitiated since the same was done without giving any reasons.
4. On the other hand, learned Counsel for the MCD urged that the very purpose of granting compassionate appointment is to tide over the immediate financial crunch that the family has to face on the death of its earning member. It was submitted however, that in the present case, there was no such immediate financial crunch faced by the family of the deceased employee, since the petitioner is getting the amount of family pension and had already received a sum of Rs. 1,50,668/- against Leave Encashment, GPF Contribution, GIS and Gratuity and in such circumstances, the family cannot be said to be in a state of penury.
5. It was also contended on behalf of the MCD that the order dated 3rd March, 2006, rejecting the application of the petitioner for compassionate appointment was well reasoned. Attention of the Court was drawn to the Minutes of the Meeting of the Committee of Compassionate Appointment dated 3rd March, 2006, wherein the reasons for not recommending the case of the petitioner for compassionate appointment were stated. The Committee took note of the fact that the family was residing in its own one room set. It examined the case in detail, taking into account the limited vacancy available for appointment on compassionate ground and the fact that the petitioner was over age. Emphasis was placed on the fact that while the age limit for direct recruits to the post of Mali was between 18 and 25 years, the petitioner was already 34 years of age, i.e. over age by 9 years on the date of filing of the application thus well beyond the permissible age, even after relaxation.
6. It was further submitted that only 5% of the vacancies falling under direct recruitments quota in any Group 'C' or 'D' post could be filled up on an annual basis by making appointments on compassionate grounds, and since the said 5% quota was already exhausted, there were no further vacancies left, for considering the case of the petitioner for appointment.
7. Rebutting the arguments advanced by the counsel for the MCD, counsel for the petitioner placed reliance on Rule 6(B) of the Service Rules regarding appointment on compassionate grounds to state that the upper-age limit could be relaxed whenever found necessary, and therefore the petitioner being over age ought not have weighed much with the MCD, considering the fact that the financial condition of the petitioner/s family was very poor.
8. Before weighing the merits of the arguments advanced by the parties, it is appropriate to note certain basic parameters that ought to be kept in mind while dealing with the cases of compassionate appointment. Firstly, while giving such compassionate employment, it is to be kept in mind that it is not unduly unfair with the rights of those other persons who are eligible to seek appointment against a post which would have been available but for the provision enabling appointment being made on compassionate grounds to the dependants of the deceased employee. Reliance in this regard can be placed on the judgment rendered by the Supreme Court in the case of State of Manipur v. Md. Rajaodin, reported as . Appointment on compassionate ground cannot be claimed as matter of right and such appointment cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. A claim for appointment on compassionate basis has been considered as reasonable and permissible on the basis of the sudden crisis occurring in the family of an employee who has served the state and died while in service. However the rules, regulations, administrative instructions and orders in this behalf must stand the test on the touchstone of Article 14 and 16 of the Constitution of India. Appointment on compassionate basis is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the effect of the death of the 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 again such appointments on compassionate ground have to be made only in accordance with the rules, regulations or administrative instructions taking into consideration the family condition of the family of the deceased. Support is drawn from the following judgments:
(i) Umesh Kumar Nagpal v. State of Haryana
(ii) State of Haryana v. Rani Devi
(iii) State of Haryana v. Ankur Gupta
(iv) M.C.D. v. Jagdish Prasad decided by the Delhi High Court on 23rd December 2005 in WP(C) No. 721/2003
9. There is force in the contention of the respondent that the petitioner having already received all the amount due to her on account of Leave Encashment, GPF Contribution, GIS and Gratuity to which she was entitled, there is no such financial crisis or extreme financial difficulty, to tide over for which she needs to be appointed with the respondent MCD on compassionate grounds. In the case of Punjab National Bank v. Ashwani Kumar Taneja , the Supreme Court has held that compassionate appointment should not be given where there is no financial hardship as the purpose and object behind the said appointment is to tide over sudden financial crisis. While determining and deciding this aspect, the Supreme Court held that retrial benefits have to be taken into consideration and cannot be ignored.
10. It is to be taken note of that the Minutes of the Meeting of the Committee for Compassionate appointment dated 3rd March, 2006, reflects that the Committee refused to recommend the case of the petitioner for compassionate appointment keeping in view various factors, and that the decision was taken after due application of mind. The factors taken into account were that the petitioner was staying with her family in her own one room set, and that one of her daughters was already married. The petitioner was also found to be over age by almost 9 years on the date of preferring the application, and the fact also remains that the vacancy for posts to be filled up by compassionate appointment are limited. So far as the contention of the petitioner as regards the power of the respondent MCD to relax the upper age limit under Rule 6(B) of the Service Rules regarding appointment on compassionate grounds is concerned, the same is discretionary and this Court while acting under its extra-ordinary jurisdiction under Article 226, does not deem it fit to interfere in the exercise of administrative discretion unless there are reasons warranting the same, such as the decision being vitiated by malafides, arbitrariness, bias or violation of the principles of natural justice etc.
11. Keeping in view the aforesaid facts and circumstances and the position of law as discussed above, the Court finds no illegality or perversity in the recommendations of the Committee for Compassionate Appointment dated 3rd March, 2006. The writ petition is therefore dismissed, being devoid of merits. There shall be no order as to costs.