Allahabad High Court
Raj Kumar Gupta Son Of Late Naik Ram Gopal ... vs Chief Of The Army Staff, Deputy ... on 17 September, 2004
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard Counsel for the parties and perused the record.
2. 6357692-H Late Naik Ram Gopal Gupta father of the petitioner is alleged to have been murdered in a train dacoity on 17.1.97 while he was serving in Defence Security Corp (hereinafter referred to as the DSC). The mother of the petitioner moved an application for providing employment to the petitioner on compassionate ground under the Dying in Harness scheme framed by the Central Government.
3. The petitioner's application was registered in the office of Head Quarter A.S.C. Centre (South) Banglore being Registration No. UP-33 dated 16.6.1998. Pursuant to the registration a letter was sent to the petitioner from the office of HQ ASC Centre (South) Bangalore for completing formalities regarding compassionate appointment under the Dying in Harness Rules.
4. It is alleged that despite completing all the formalities no action was taken by the authority, which compelled the petitioner to approach this Court for redressal of his grievance by means of Civil Misc. Writ Petition No. 42406 of 2001 (Raj Kumar Gupta v. Chief of the Army Staff, Army Head Quarter, D.H.Q. P.O. New Delhi and Ors.). The aforesaid writ petition was disposed of vide judgment dated 4.1.2002 with a direction to respondent No. 2 to consider the case of the petitioner for compassionate appointment. Consequently the petitioner appeared for physical test on 1.7.2002 and his candidature was rejected .Having failed to qualify in the Army and not being considered allegedly for appointment in a clerical job in the civil department the petitioner has moved this Court by filing aforesaid writ, petition for a direction in the nature of mandamus to the respondents to issue appointment letter to him according to his qualification.
5. It is alleged in para 19 of the writ petition that the candidature of the petitioner was refused by the authority in an arbitrary manner. The petitioner claims that even if he had been declared unfit in physical test for appointment in the army he ought to have been considered for appointment in clerical job in civil department for which he is also eligible being a science graduate and that the action of the respondents not considering him even for the post of clerk in the civil department is illegal without any basis and is not in consonance with letter and spirit of the judgment and direction issued by the Court dated 4.1.2002 in writ petition No. 42402 of 2001 Raj Kumar Gupta (Supra).
6. The petitioner in para 24 of the writ petition has averred that he had been refused appointment on compassionate ground because he had approached this Court. It is further submitted that the petitioner is fully entitled to get the relief claimed in this writ petition on the grounds mentioned therein. The Counsel for the petitioner has placed reliance on the following case laws:
1. ESC 2003 Vol. I Page 583 Smt. Kanti Srivastava v. State Bank of India and Ors.
2. ESC 2003 Vol. III page 1602 Durgesh Kumar Tiwari v. Chief General Manager State Bank of India Lucknow and Ors.
3. Civil and Revenue Cases 2003 Vol. III page 478 Smt. Padma Pathak v. Managing Director, Punjab National Bank, New Delhi and Ors.
4. U.P. Local Bodies and Education Cases 2002 page 2807 Vol.3 Dhiraj Kumar Dixit v. The General Manager (Personnel), UCO Bank, Calcutta and Ors.
7. The judgments of Smt. Kanti Srivastava v. State Bank of India and Ors. (supra) has been stayed by the Division Bench in Special Appeal No. 181 of 2003 vide order dated 25.3.2003 whereas the case of Durgesh Kumar Tiwari v. Chief General Manager, State Bank of India, Lucknow and Ors. (Supra) challenged in Special Appeal No. 777 of 2003 has been dismissed by judgment dated 20.7.2004.
8. In Civil and Revenue Cases 2003 Vol. III page 478 Smt. Padma Pathak v. Managing Director, Punjab National Bank, New Delhi and Ors. it has been held that-
Appointment- Compassionate ground- Refusal to absorb under scheme for employment of dependent of employees- Dying in Harness- Husband died due to cancer leaving behind minor childrens and widow-Rejection of application without giving proper reasons will amount to denial of social justice and protection.
9. Similarly in U.P. Local Bodies and Education Cases 2002 page 2807 Vol.3 Dhiraj Kumar Dixit v. The General Manager (Personnel), UCO Bank, Calcutta and Ors. while considering the validity of Clauses 7 and 8 of the Scheme for Recruitment of Dependents of Deceased Employee on Compassionate Ground held that:
Application of the petitioner rejected on ground that monthly income of the family of the deceased was higher than 60% of the last drawn salary of the deceased employee. Respondents also considered retiral benefits, family pension, group insurance and insurance policy for determining the family income of the deceased. Scheme does not permit an appointment on compassionate ground except in case falling under Clause 7(d), which would not only be rare but would be impossible for any dependent to be eligible. Clauses 7 and 8 are arbitrary and irrational. Respondents directed to consider the representation of the petitioner for compassionate appointment according to his eligibility.
10. Smt. Aradhana Chauhan, Counsel appearing for the respondents submits that the object of the scheme for providing appointment on compassionate ground is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment. She has placed reliance upon the averments made in the counter affidavit that the mother of the petitioner has received approximately a sum of Rs. 2,81,000.00 as post death benefit. On this basis she contends that no ground exists for providing employment assistance to the dependent of the deceased on compassionate ground as the family was not in indigent circumstances and moreover, the family has survived for more than 5 years, as such there is no emergency or immediate need for compassionate appointment in the instant case.
11. Relying upon the case of Umesh Kumar Nagpal v. State of Haryana and Ors. it is urged that offering compassionate appointment as a matter of course irrespective of financial condition of the family deceased person is legally impermissible and it can be granted only within a reasonable period. She vehemently contends that the Central Government has framed scheme providing 5% quota for compassionate appointment to the dependent of the deceased according to the availability of suitable vacancy. She further submits that the death rate of DSC is very high hence all the dependents can not be accommodated under the scheme of compassionate appointment which is limited to the prescribed quota earmarked for this purpose. Her further submission is that in DSC the civilian cadre is limited and evolving a civil post for compassionate ground is very rare; that and the matter of the petitioner had received attention and had been examined at various levels. She further submits that the Government has stipulated a time frame for providing employment assistance and according to the revised procedure, if no vacancy meant for appointment on compassionate grounds within prescribed quota accrues within a period of one year, such cases are not required to be considered for providing employment assistance. Repelling the contention of the petitioner that he has not been offered a civil post at the time of death of his father due to non availability of vacancy on compassionate ground she submits that no person has been given appointment superseding the petitioner and that even at present there is no vacancy within the prescribed quota to provide employment to the petitioner.
12. In Hindustan Aeronautics Ltd. v. A. Radhika Thirumalai (Smt.) it has been held that in the absence of any vacancy there is no entitlement or vested right which may be taken or exercised by the dependent of the deceased at any time. The Apex Court has again in Union of India v. Joginder Sharma ESC 2002(4) SC-25 has held that judicial interference in a discretionary power of the authorities to provide appointment on excess of percentage reserved for such compassionate appointment already exhausted is not proper.
13. Appointment in public service on compassionate ground has been carved on as an exception to the normal procedure for recruitment. The compassionate appointment is based on humanitarian approach and that the whole object of the scheme is to enable the family to tide over the sudden crisis. In LIC v. Asha Ramchhandra Ambedkar the Apex Court has settled the legal position that an appointment on compassionate ground may be given only in accordance with the relevant Rules and Guide-lines that have been framed by the authorities for this purpose and no person can claim appointment on compassionate ground dehorse the Rules and the Guide-lines.
14. In the case of Himanchal Road Transport Corporation v. Dinesh Kumar it has been held that-
...In the absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorised. Normally, even if the Tribunal finds that a person is qualified to be appointed to a post under the kith and kin policy, the Tribunal should only give a direction to the appropriate authority to consider the case of the particular applicant, in the light of the relevant rules and subject to the availability of the post. It is not open to the Tribunal either to direct the appointment of any person to a post or direct the authorities concerned to create a supernumerary post and then appoint a person to such a post.
15. In the instant case, the petitioner has failed to qualify in the Army and there being no vacancy in the civil department he could not be given appointment under the scheme and the rules for compassionate appointment. The action of the respondents in not appointing the petitioner on compassionate ground can not be said to be illegal or arbitrary.
16. For the reasons stated above and in view of the law laid down by the Apex Court the writ petition is dismissed. No order as to costs.