Central Administrative Tribunal - Delhi
Sunita Devi vs Comm. Of Police on 8 April, 2024
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Item No. 24/Court-4
O.A. No. 61/2020
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 61/2020
Reserved on : 18.03.2024
Pronounced on : 08.04.2024
Hon'ble Dr. Anand S. Khati, Member (A)
Smt. Sunita Devi (Age 49 years)
W/o Late Shri ASI Jai Bhagwan (Group-C)
R/o House No. 215-26, Ishwar Colony Extension
Phase-I, Bawana, Delhi-110039.
...Applicant
(By Advocate: Ms. Aanchal Anand)
Versus
1. Govt. of NCT of Delhi
(Through its Chief Secretary)
Secretariat Office, ITO, Delhi.
2. The Joint Secretary to L.G.
Raj Niwas, Delhi.
3. Commissioner of Police
Delhi Police, MSO Building
I.P. Estate, New Delhi.
...Respondents
(By Advocate: Mr. Amit Yadav)
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Item No. 24/Court-4
O.A. No. 61/2020
ORDER
In the instant O.A., the applicant, who is wife of the deceased employee, viz. Jai Bhagwan, who died on 22.11.2017 while working in Delhi Police as Assistant Sub Inspector, is seeking appointment for her younger son on compassionate ground, which has been denied by the respondents - Delhi Police vide letter dated 28.12.2018 declaring him 'Less Deserving'. When the applicant approached the office of respondent No.1, she came to know that her request was rejected by the Screening Committee because her elder son is serving in Indian Army. However, since her deceased husband had already disowned the elder son much prior to his death and the family has not been getting any care or financial support from him, she preferred an appeal to the Hon'ble Lieutenant Governor, Delhi describing the severed relationship with her estranged elder son and pathetic condition of the family. However, vide letter dated 31.07.2019, she was informed that her request was placed before the Hon'ble Lt. Governor, but the same was not acceded to. Hence, the applicant has filed the present O.A. seeking the following relief(s):
"(i) Quash and set aside the order dated 28.12.2018 (Annexure A-2) and 31.07.19 (Annexure A-5);
(ii) Issue direction, directing the respondents to consider the case of the applicant for 3 Item No. 24/Court-4 O.A. No. 61/2020 appointment of her son on compassionate grounds in Delhi Police;
(iii) Pass such other further order(s) as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. The learned counsel for the applicant strenuously argued that the request of the applicant was rejected by the respondents by a non-speaking order dated 28.12.2018 without specifying any reason for being 'less deserving'. Subsequently, the appeal preferred by the applicant against the said order was also rejected vide order dated 31.07.2019 by respondent No.2, stating that her case was placed before the Hon'ble Lt. Governnor, Delhi under Rule 30 of the Delhi Police (Appointment & Recruitment) Rules, 1980, but the same was not acceded to without considering and addressing the grounds taken by her, which is in violation of the principles of natural justice. She further argued that the family of the applicant do not have any source of income except the pension of her deceased husband which is not enough for survival of the family and her younger son is competent enough for appointment in Delhi Police.
3. The learned counsel for the applicant submitted that the case of the applicant should be considered as per clauses 6 and 11 of Delhi Police General Scheme on Compassionate Ground Appointments circulated vide Standing Order dated 39/2018, which provides as under:-
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Item No. 24/Court-4 O.A. No. 61/2020 "(6). CASES WHERE THERE IS AN EARNING MEMBER
(a) In deserving cases even where there is already an earning member in the family of the deceased employee, a dependent family member can be considered for appointment on compassionate ground.
(b) Compassionate ground appointment will not be offered to the dependent of the deceased police personnel, where there is already an earning member i.e. Govt. Servant (including public sector undertaking). However, in case a married daughter of deceased is a Govt. employee then the Screening Committee will take a decision, keeping in view the status and. all other aspects of the deceased's family.
(c) Compassionate ground appointment will be offered by the Screening Committee in the initial or lowest rank or post to the dependent of the deceased police personnel.
(d) In belated cases, the applicant can apply as long as he or she has not attained the maximum age, prescribed for the particular post for which he or she is applying.
(e) In case of an unmarried police employee, his or her dependent brother or unmarried sister may be considered for this appointment. He or she will have to give undertaking to the effect that he or she will look after the other dependent members."
xxx xxx xxx xxx "(11) POWERS OF COMMISSIONER OF POLICE AND HON'BLE LT. GOVERNOR a. As per Rule 5(d) of the Delhi Police (Appointment & Recruitment) Rules-1980, notwithstanding the above rules, the Commissioner of Police shall be the competent authority to appoint in relaxation of the procedure of recruitment through the Employment Exchange and without subjecting to competitive test, the son or daughter of Delhi Police personnel who die in harness leaving their families in immediate need of assistance in terms of the instructions issued by the Govt. of India, MHA regarding such compassionate appointment. b. As per Rule 30 of the Delhi Police (Appointment & Recruitment) Rules-1980, under the head "Power to Relax", when the administrator is of the opinion that it is necessary or expedient so to do, he may, by order, for reasons to by recorded in writing, relax 5 Item No. 24/Court-4 O.A. No. 61/2020 any of the provisions of these rules with respect to any class, category, of persons or posts or in an individual case."
She also drew my attention to Clause 11(a) of the DoP&T Master Circular dated 02.08.2022 regarding Scheme for Compassionate Appointment, which is reproduced below:
"11. WHERE THERE IS AN EARNING MEMBER
(a) In deserving cases even where there is already an earning member in the family, a dependent family member may be considered for compassionate appointment with prior approval of the Secretary of the Department/Ministry concerned who, before approving such appointment, will satisfy himself that grant of compassionate appointment is justified having regard to number of dependents, assets and liabilities left by the Government servant, income of the earning member as also his liabilities including the fact that the earning member is residing with the family of the Government servant and whether he should not be a source of support to other members of the family."
4. To strengthen her arguments, the learned counsel for the applicant has placed reliance upon the Judgment dated 20.08.2018 of the Hon'ble High Court of Madhya Pradesh at Indore passed in the matter of Premsingh Rajawat vs. State of M.P. and Another, rendered in Writ Petition No. 5436/2017, the relevant portion of the same reads thus:
"The policy does provide that if any member of the family is in government service, the other member will not be eligible for grant of compassionate appointment. In the present case, the petitioner's brother is working as a Soldier. It is a tenure appointment and it is not a case where the petitioner's brother is going to be retired on completing of 60 years of age. He is holding the post of Soldier and in Indian Army the age of retirement differs for each rank. Not only this, the brother of the 6 Item No. 24/Court-4 O.A. No. 61/2020 petitioner is having his family. He has got no relationship with the petitioner as stated by the petitioner. The brother is settled elsewhere and by joining the Army by one of the family member, the petitioner cannot be made to suffer. Resultantly, this Court is of the opinion that the present case is certainly having distinguishable feature and the case of the petitioner deserves to be considered on merits ignoring Clause 4.1. The petition is allowed and the respondents are directed to pass appropriate order after considering the case of the petitioner within a period of 60 days from the date of receipt of certified copy of this order. Certified copy as per rules."
Subsequently, the Writ Appeal No.157/2019 filed by State of Madhya Pradesh against the ibid Order was dismissed by the Hon'ble High Court of Madhya Pradesh at Indore vide Judgment dated 15.02.2022.
5. Learned counsel for the applicant vigorously argued that the sole ground of rejection of applicant's request was that her elder son is working in Indian Army, which is not in consonance with clause 6(a) of Delhi Police Standing Order No.39/2018 read with Clause 11(a) of DoPT Master Circular dated 02.08.2022 and Point 18 of DoPT FAQs on scheme of compassionate appointment and, accordingly, insisted that the respondents may be directed to reconsider the case of applicant's younger son for compassionate ground appointment.
6. Per contra, Mr. Amit Yadav, learned counsel for the respondents opposed the contentions of the applicant and submitted that the O.A. is not maintainable in view of the 7 Item No. 24/Court-4 O.A. No. 61/2020 judgments passed by the Hon'ble Supreme Court in LIC vs. Asha Ramachandra Ambedkar, (1994) SCC 2 718, wherein it has been held that:
"the Courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however hard the case may be, it should never be done".
and also in Union of India vs. Sima Banerjee in Civil Appeal No. 251 of 2017 dated 10.01.2017, wherein it has been held as under:
"The Central Administrative Tribunal directed the appellant to consider the claim of the respondent on merits and this view has been upheld by the High Court. We have heard learned counsel for the parties. It is pointed out by learned counsel for the appellant that the object of compassionate appointment is to enable the family to tide over the sudden crisis as laid down by this Court in Umesh Kumar Nagpal Vs. State of Haryana & Ors 1994 (4) SCC 138 and in State of U.P. & Ors. Vs. Pankaj Kumar Vishnoi 2003 (11) SCC 178, Thus, direction to give compassionate appointment several years after death was not justified. We are in agreement with the above submission..."
7. The learned counsel for the respondents further averred that the deceased employee, ASI (Exe.) Jai Bhagwan, No. 258/RD (PIS No. 28840849), who was posted in Rohini District, Delhi, expired on 22.11.2017 as he committed suicide. On 24.01.2018, the wife of the deceased, i.e. the applicant herein, submitted an application in the office of DCP/Rohini District regarding appointment of her younger son, Sh. Akshay Kumar, for the post of Constable 8 Item No. 24/Court-4 O.A. No. 61/2020 (Exe.) in Delhi police on compassionate ground. After completing all due procedures, her request was considered by the Screening Committee in its meeting held on 11.10.2018, but could not be approved being 'Less Deserving' as elder son of the deceased, viz. Sh. Sandeep Kumar, is serving in 'Army', in terms of clause 6(b) of Standing Order No.39/2018, which reads as under:
"Compassionate ground appointment will not be offered to the dependent of the deceased police personnel, where there is already an earning member i.e. Govt. Servant (Including public sector Undertaking). However, in case of married daughter, the screening committee will take decision, keeping in view of the status/all aspects of the deceased's family."
Accordingly, the applicant was informed in this regard vide letter No. 21813/Estt-II/RD dated 28.12.2018. The appeal made by the applicant against the aforesaid decision was also not acceded to by the Hon'ble Lt. Governor, as already conveyed vide letter dated 31.07.2019. He further averred that the applicant has got pensionary benefits of Rs. 30,91,071/- and also drawing family pension of Rs. 24,500/- p.m. + DA. To buttress his arguments, he placed reliance on the decision of the Hon'ble Supreme Court in Umesh Kumar Nagpal vs. State of Haryana and Others, 1994 SCC (4) 138, wherein it has been held that compassionate ground appointment is not a vested right. 9 Item No. 24/Court-4 O.A. No. 61/2020
8. The learned counsel for the respondents also placed reliance on a catena of judgments passed by various Hon'ble High Courts. The relevant paras of the judgments, as highlighted, are extracted below:
(i) The judgment of Hon'ble High Court of Punjab & Haryana in CWP No. 7000 of 2016 ( O&M) in the matter of Sunil Bakshi Vs. Chandigarh Housing Board and Others, decided on 26.07.2016.
"........
b) In cases where any member of the family of the deceased or medically retired Government servant is already in employment and is not supporting the other members of the family of the Government servant, extreme caution has to be observed in ascertaining the economic distress of the members of the family of the Government servant so that the facility of appointment on compassionate ground is not circumvented and 3 of 6 misused by putting forward the ground that the member of the family already employed is not supporting the family." Perusal of the relevant Clauses of the Scheme for compassionate appointment clearly reveal that the object to grant. appointment on compassionate grounds and to a dependent family member of a Government servant dying in harness is to relieve the family of such Government servant who has been left without any means of livelihood. Clause 5 governs eligibility for grant of compassionate appointment and the same postulates such appointment in favour of the dependent of an affected family which is indigent and deserves relief from financial destitution. Clause 10 of the Scheme grants discretion to the Competent Authority to grant compassionate appointment in deserving cases even in a situation where there is already an earning member in the family. Such discretion if at all to be exercised is only with the prior approval of the Secretary to the Department/Ministry concerned and the compassionate appointment in cases where there is already an earning member in the family is to be approved after taking into account the number of dependents, assets and liabilities left by the deceased Government servant, income of the earning member as also his liabilities etc. In the present case and as per Annexure P-8, the claim of the petitioner has been 10 Item No. 24/Court-4 O.A. No. 61/2020 rejected by observing that the petitioner prior in point of time had taken a stand that even his mother is employed but she is handicapped having been involved in a severe bus accident and may leave the job at any time. The Compassionate Appointment Committee in its meeting held on 15.09.2015 has rejected the claim of the petitioner taking note of the fact that mother of the petitioner is still serving as no documents 4 of 6 had been produced as regards her having left the job.
xxx xxx xxx xxx The competent authority in the present case has exercised its discretion against the petitioner and denied compassionate appointment on the basis that there is an earning member in the family of the deceased. Ostensibly, the conclusion of the competent authority is that the petitioner is not in a state of abject poverty or penury.
The Hon'ble Supreme Court in a catena of judgments has categorically held that Articles 14 and 16 of the Constitution of India mandates that all eligible candidates should be considered for appointment to a post which is falling vacant. Appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said Rule. It is a concession and not a right. Such view was taken by the Apex Court in General Manager, State Bank of India and others Versus Anju Jain, 2008 (4) S.C.T. 305 and subsequently reiterated in Steel Authority of India Limited Versus Madhusudan Dass and others, 2009 (1) S.C.T. 449.
Even otherwise, it is by now well settled that the scope and extent of power of judicial review at the hands of the High Court under Article 226 of the Constitution of India would not be in the nature of an Appellate Court over administrative decisions. The competent authority having exercised its discretion and having passed an order taking a view declining the claim of the petitioner seeking compassionate appointment, such view would be open to inference in the process of judicial review only if it is shown that the exercise of discretion itself is perverse or illegal. The Hon'ble Supreme Court in the case of State of Uttar Pradesh and another Vs. Johrimal 2004 (3) SCT 409 has even held that a mere wrong decision without anything more is not enough to attract the power of judicial review under Article 226 of the Constitution of India.
The impugned decision as contained in the minutes of a meeting of the Compassionate Appointment Committee held on 15.09.2015 declining the claim of the petitioner seeking compassionate appointment cannot be termed as perverse and without any basis /material. This Court does not find any valid basis justifying interference in the same."
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(ii) The order of Hon'ble High Court of Chhattisgarh, in WPS No. 7706 of 2022 in the matter of Priyanka Singh Vs. State of Chhatisgarh and Ors., decided on 23.11.2022:
"2. Learned counsel for petitioner submits that father of petitioner was under employment in the Department of Training-cum-Production Centre on the post of Semi- skilled artisan, he died in harness on 11.10.2017. Petitioner thereafter submitted an application for grant of compassionate appointment with the Respondents- authorities which came to be rejected and rejection of claim of petitioner was intimated vide order dated 11.09.2019. He contended that the ground mentioned for reiection of claim or petitioner that two of his brothers are already in Government employment is correct but, brothers of petitioner are not maintaining the petitioner and her mother. Both the brothers are living separately along with their family. He also contended that the Respondents-authorities before coming to the conclusion that petitioner is not entitled for grant of compassionate appointment because her two brothers are in Government employment have not conducted any enquiry to ascertain whether the brothers of petitioner are maintaining the petitioner and her mother or not and committed error in rejecting the application. As the petitioner and her mother are not being maintained, she is entitled for compassionate appointment.
xxx xxx xxx
14. In the given facts of the case and decisions of Hon'ble Supreme Court as also order passed by Division Bench of this Court in WPS No. 223/2022, I am of the considered view that respondent No. 2 has not committed any illegality in rejecting application of petitioner for grant of compassionate appointment in terms of Clause 6A of consolidated Instructions 2016, warranting interference in exercise of writ jurisdiction."
(iii) The order of Hon'ble High Court of Punjab and Haryana, CWP No. 14776 of 2017 (O&M) in Trilok Bahadur vs. Registrar, Punjab and Haryana High Court and Ors., dated 13.10.2021:
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Item No. 24/Court-4 O.A. No. 61/2020 "3. Brief facts necessary for adjudication of the case are that petitioner's father namely Gobind Bahadur, was employed as Daftry, Class-III Employee at Sessions Division, Sangrur, since 1983. It is stated that Gobind Bahadur unfortunately passed away on 12.12.2011 while in service, after having rendered 28 years 11 months and 08 days of unblemished service. Application dated 04.01.2012, Annexure P-1, was submitted by the petitioner seeking appointment on compassionate grounds. Petitioner's father left behind his widow, two sons including the petitioner and a daughter. Petitioner sought employment on compassionate basis while disclosing that his brother was serving the Army and that the family was finding it difficult to maintain themselves after the death of their father. Report dated 14.03.2012, Annexure P-2, in this regard was submitted by the Additional District Judge, Sangrur, to the District and Sessions Judge, Sangrur, with the observation that keeping in view the financial condition of the family of the late employee, appointment on compassionate grounds was not recommended. Petitioner's prayer for appointment on compassionate basis was rejected on 01.05.2014.
xxx xxx xxx xxx
11. The Hon'ble Supreme Court in Umesh Kumar Nagpal Vs. State of Haryana and others, MANU/SC/0701/1994: 1994 (3) SCT 174 has held that the whole object of granting compassionate employment is to enable the family of deceased employee to tide over sudden crisis and to save the family from financial destitution. This favourable treatment given to dependent of the deceased employee was accepted as it bore a rationale nexus to the object sought to be achieved viz. relief against destitution. It is further observed that compassionate appointment can't be claimed when the crisis is over and neither can it be offered on an ad hoc basis. It is pertinent to note that there is no averment in the writ petition that at this point of time, petitioner and his family are in such dire straits or such state of penury making it difficult to make two ends meet. Petitioner's father had passed away in 12.12.2011 and his claim for appointment on compassionate basis rejected on 01.05.2014. There is indeed nothing on record to indicate such financial crisis calling for appointment on compassionate basis. Argument raised by learned counsel regarding discrimination is noticed only to be rejected. Apart from the fact that there is nothing on record to indicate that the petitioner is identically situated as Lovepreet Singh, who is stated to have been appointed on compassionate basis, the given factual matrix as discussed above does not justify appointment of petitioner on compassionate basis in any manner.
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12. Keeping in view the facts, circumstances and reasons as discussed in the foregoing paras, I do not find any ground whatsoever to interfere in the present writ petition, for directing the respondent-authorities to reconsider the case of the petitioner for appointment on compassionate basis."
(iv) The order dated 01.04.1998 of Hon'ble High Court of Delhi in CWP No. 1890/1997 in the matter of Lal Singh Vs. Delhi Vidyut Board:
"2. It is stated in the petition that at the time of his death the father of the petitioner left behind his widow and three sons as his legal heirs. The two brothers of the petitioner, it is stated are already married and are maintaining separate kitchen and are living separately even prior to the death of the father of the petitioner. Since the petitioner has passed his High School and Intermediate examination he is eligible to be appointed to the post of Junior Clerk in the office of the respondent and Therefore, in terms of the circulars issued by the Government of India the petitioner sought for appointment as Junior Clerk in the office of the respondent on compassionate ground.
xxx xxx xxx xxx
12. In my considered opinion the facts and circumstances of the present case also appear to be somewhat similar to the facts and circumstances in C.W. 4284/1995. On consideration of entire facts and circumstances, I am of the opinion that the petitioner has failed to make out any case for invoking the extraordinary jurisdiction of this Court. In my considered opinion the decision making process of the respondent in rejecting the application of the petitioner for appointment on compassionate ground cannot be said to be either arbitrary or irrational and Therefore, the writ petition stands dismissed but without any costs."
(v) The order of Hon'ble High Court of Delhi in CWP No. 3430/97 & CM 6658/97, Municipal Corporation of Delhi Vs. Bhori Lal and Ors., decided on 23.07.1999:
"12. In Life Insurance Corporation of India Vs. AshaRamchhandra Ambekar (Mrs.) MANU/SC/ 14 Item No. 24/Court-4 O.A. No. 61/2020 0453/1994: (1994)IILLJ173SC Hon'ble Supreme Court held that courts cannot order appointment on compassionate grounds dehors the provisions of statutory regulations and instructions. Following observations of the Hon'ble Supreme Court are worth quoting:
"The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. The courts should endeavor to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, should never be done. In the very case itself, there are regulations and instructions governing the matter. The court below has not even examined whether a case falls within the scope of relevant statutory provisions. The appellant Corporation being a statutory Corporation is bound by the Life Insurance Corporation Act as well as the Statutory Regulations and Instructions. They cannot be put aside and compassionate appointment be ordered."
xxx xxx xxx xxx
16. I am unable to agree with the contentions raised by the respondent. The terms of reference while stipulating as to whether Shri Bhori Lal is entitled to be appointed as Baildar on compassionate ground, further mentions as to what directions are necessary in this respect. Therefore, while answering the reference, the Tribunal could give direction that the application of Shri Bhori Lal should be considered by MCD. Even while deciding the question as to whether Shri Bhori Lal is entitled to appointment on compassionate ground or not, the Industrial Tribunal could do so only in terms of office Memorandum dated 30.6.87 and as per it is for the management to consider the application of the legal heir of deceased employee having regard to the considerations mentioned therein.
xxx xxx xxx xxx
18. The direction contained in para-16 of the impugned Award is, accordingly, set-aside and the Award is modified and direction is issued to the petitioner to consider the application of Shri Bhori Lal for compassionate appointment after taking into consideration all relevant factors. While considering the application of Shri Bhori Lal, it would be open to MCD to see the present condition of the family inasmuch as 12 years have elapsed since the death of Shri Chunna Ram, father of Shri Bhori Lal. As per the judgment of Hon'ble Supreme Court in Umesh kumar Nagpal Vs. State of Haryana and others (Supra) the whole object of granting compassionate employment is thus to enable 15 Item No. 24/Court-4 O.A. No. 61/2020 the family to tide over the sudden crisis. As per the said judgment, compassionate employment cannot be granted after elapse of reasonable period. It would be open to Shri Bhori Lal to make representation detailing all the facts and circumstances including present financial position of the family and representation, if any, would be given by Shri Bhori Lal within a period of two weeks and this representation would be decided by the MCD within a period of two months.
19. The writ petition is disposed of in the aforesaid terms. No costs."
9. The learned counsel for the respondents also provided a document regarding the principle of 'Stare decisis' amongst High Courts, whereby on the basis of various judgments of the Hon'ble High Courts, the term has been defined as under:
"Introduction
1. The principle of 'stare decisis' (to stand by decided cases) is as old as the establishment of the courts. It is derived from legal maxim 'stare decisis et non quieta movere':. It is best to adhere to decisions and not to disturb questions, which have been put at rest. When a point of law has been settled, it forms a precedent which is not to be ordinarily departed afterwards. When the same point comes for consideration again in litigation, the scales of justice must be kept even and steady. A principle of law should not change from case to case.
The judgments are not to be altered or changed in accordance with the individual opinions or private sentiments of the judges. The primary duty of the judiciary is to maintain rule of law. The law does not change with the opinion of the judges. In a given case the opinion of the judges may change, the principles of law however must remain on surer foundations until there is any change in legislation, or the society needs such change.
2. In the hierarchy of courts the opinion of judges on the questions of law decided by the superior courts are binding on the lower courts. The Constitution of India declares in Article 141 that the law declared by the Supreme Court shall be binding in all courts within the territory of India. The High Courts do not have liberty under this rule of discipline, to take a different view or to rely upon supposedly conflicting decisions, where the 16 Item No. 24/Court-4 O.A. No. 61/2020 Supreme Court has laid down clear law on the subject. The High Courts are not to contradict the law declared by the Supreme Court."
The same has been concluded as under:
"Conclusion
16. The High Courts should consider to adopt the doctrine of stare decisis in the matters of the decisions of other High Courts in interpreting the same laws and the common laws applicable to the people in their states. It is difficult to believe that the High Courts in the courts committed to the same constitutional goals and values may be allowed different and sometimes conflicting resolutions and interpretations on the same issues in law. The unity and integrity of the nation, foreseen in the preamble of the Constitution of India can be achieved by uniting the institutions, working together towards the same constitutional goals."
10. The learned counsel for the respondents concluded that as the ratio has already been laid down by the Hon'ble Courts, as referred to above, the applicant, whose case has been reconsidered by the respondents cannot be reopened as the case of applicant's son has not been denied but better deserving candidates than him have been given compassionate appointment out of the available candidates, due to limitation of vacancies.
11. In rebuttal, the learned counsel for the applicant vehemently opposed the contentions of the learned counsel for the respondents by placing reliance on clause 18 of the Department of Personnel & Training, Establishment 'D' Division, Frequently Asked Questions (FAQs) on Compassionate Appointment, which reads as under: 17
Item No. 24/Court-4 O.A. No. 61/2020
18. Whether dependent Yes. In deserving cases, even of deceased employee where there is already an can be considered for earning member in the compassionate family, a dependent family appointment when member may be considered there is an earning for compassionate member in the appointment with prior family? approval of the Secretary of the Department/ Ministry concerned who, before approving such appointment, will satisfy himself that grant of compassionate appointment is justified having regard to number of dependents, assets and liabilities left by the Government servant, income of the earning member as also his liabilities including the fact that the earning member is residing with the family of the Government servant and whether he should not be a source of support to other members of the family.
12. She further placed reliance on a recent judgment dated 03.01.2024 of Hon'ble Madurai Bench of Madras High Court in W.P. (MD) No. 23985 of 2022, in the matter of M. Yogamagi vs. The Secretary to the Government, Department of School Education & Ors., wherein while allowing the Writ Petition, the Hon'ble High Court has observed as under:
"4. The learned Special Government Pleader appearing for the respondents has filed a counter on behalf of the 3rd respondent and he vehemently submitted that the petitioner's application was rightly rejected by the 3rd respondent, because the petitioner's family is receiving a monthly pension of Rs.35,150/- (Rupees Thirty Five Thousand One Hundred and Fifty only) after the death of his mother. That apart, the petitioner's father is also working at Krishnapuram Amaravathy co-operative 18 Item No. 24/Court-4 O.A. No. 61/2020 Sugar Mills as Assistant and drawing a handsome salary. Hence, the petitioner's request for granting appointment on compassionate ground could not be positively considered and hence, the same was rejected and on that basis, sought for dismissal of this Writ Petition.
5. Per contra, the learned Counsel appearing for the petitioner categorically submitted in the affidavit of the petitioner it is pleaded that the petitioner's father is residing away from the petitioner even before the death of the petitioner's mother and pressed for allowing this Writ Petition.
6. A careful perusal of G.O(Ms) No. 18 of the Labour and Employment (Q1) Department, dated 23.01.2020, would reveal that if any person, in the deceased Government Servant's family was employed even before the death of the Government Servant but was living separately without extending any help to the family, then the case of other eligible dependant will be considered. It is also mandated in the said G.O(Ms) No. 18 of the Labour and Employment (Q1) Department, dated 23.01.2020, the family pension of the deceased employee need not be taken into account while assessing the income of the family. In view of the same, this Court is of the considered view that the petitioner's application ought to have been properly appreciated by the 3rd respondent, however, the said exercise was not properly done."
13. She again drew my attention to the order dated 15.02.2022 passed by Hon'ble High Court of Madhya Pradesh at Indore in Writ Appeal No. 157 of 2019 (supra), which reads as under:
"1. Late Ishwarsingh Rajawat working on the post of peon in the office of collector Ujjain. He died on 12.09.2016 due to cardiac arrest while in employment. The writ petitioner being a second son dependent of income his father became eligible to claim a compassionate appointment after the death of his father. He submitted an application in prescribed form on 02.10.2016 in the Office of Collector claiming compassionate appointment on the post of Assistant Grade - III by virtue of his educational qualification B.Com. M.A. and A.D.C.A. In support of the application, he has submitted the affidavit of his mother Smt. Padma Kunwar to the effect that she has no source of income. Her elder son Jitendra Rajawat is working in the Indian Army since 2008 has also given an affidavit 19 Item No. 24/Court-4 O.A. No. 61/2020 that he is not in a position to support the family financially as he has been living separately with his wife and not providing any financial aid to the father, mother and writ petitioner.
2. Vide letter dated 18.10.2016, the Collector Uijain has sought direction from Principal Secretary, GAD of Madhya Pradesh for grant of compassionate appointment to the petitioner in view the condition No.4.1 of the policy dated 29.09.2014. Vide letter dated 10.11.2016, the Deputy Secretary of GAD of Madhya Pradesh has held that in view of clause 4.1, the writ petitioner is not entitled to get the compassionate appointment. Hence, the petitioner filed a writ petition, and it came to be allowed vide order dated 20.08.2018 on the ground that the employment in the Indian Army is a tenure appointment. The Writ Court has held that the brother of the writ petitioner after joining the Indian Army has been living separately and for which the writ petitioner cannot be made to suffer.
3. Being aggrieved by the above direction given by the writ court the State of Madhya Pradesh has preferred this Writ Appeal on the ground that since the elder brother of the writ petitioner is already in employment of Indian Army, which makes the petitioner ineligible to claim the compassionate appointment by virtue of condition No.4.1 of the policy dated 29.09.2014. it is further submitted by the learned Government Advocate for the appellant that the language of clause 4.1 is very clear, no other interpretation can be given. Even otherwise the policy of compassionate appointment is only a policy framed by the Government has no statutory force, hence, no writ of mandamus can be issued to the State for providing employment. Shri Garg learned Government Advocate has placed reliance on the judgment passed by the Division Bench of Court in the case of Prajesh Vs. State of M.P. in which clause 4.1 of the aforesaid policy has been examined and held that the dependent of the deceased's family is not entitled to a compassionate appointment if one of the family members is in Government Service, even if he is not supporting the other dependent, therefore, the order passed by Writ Court runs contrary to the aforesaid judgment, hence, liable to be set aside.
4. Per contra Shri A.K. Sethi, learned Senior Counsel appearing on behalf of the writ petitioner has argued that the Hon'ble Writ Court has rightly held that the employment in the Indian Army is different from the service of State Government as well as Central Government. In the Indian Army, there is no uniform age of retirement at the age of 60 or 62 years. The brother of the petitioner was initially appointed on the post of Soldier and now he has been promoted to the post of Naik for which retirement age is 47 years and he would be retiring from service on 31.12.2030. In clause 4.1, if any member is in employment in services of Corporation, Council and commission etc. then only one 20 Item No. 24/Court-4 O.A. No. 61/2020 of the dependents shall be ineligible to claim the compassionate appointment. Employment in the Armed forces is liable to be excluded as it cannot be compared with government service. Even otherwise being an employee of the Indian Army, the brother of the writ petitioner is posted in various parts of the country, and he is having his own family to support. He is out from dependence of the deceased employee; hence, no interference is warranted and writ appeal is liable to be dismissed.
xxx xxx xxx xxx
6. Recently, this clause 4.1 of the policy again come for consideration before Division Bench of this Court in Writ Appeal No. 13/2020 in which Division Bench of this Court has held that merely rejecting the plea of writ petitioner on the ground that her brother is in employment is our considered may not be correct hence, the matter has been remitted back to conduct an enquiry with regard to the penury of the petitioner and as to whether her brother who had secured the employment is taking care of the family or not or other related issues. In the said case, the Writ Court had dismissed the writ petition placing reliance on the judgment passed in the case of Prajesh (supra). In the case in hand also the mother has filed an affidavit to the effect that she is not getting any financial support from his first son because he is living elsewhere for the last 8 years with his family and not getting any financial aid. Brother of the petitioner Jitendra Rajawat has also given an affidavit that he is separately living along with his wife and given his life to serving the Indian Army for this Country. Employment in the armed force cannot be compared with service in the state or central Government. His late father and brother used to look after his mother, hence his younger brother is entitled to get a compassionate appointment. By letter dated 10 November 2016 without verifying the aforesaid fact and conducting any enquiry, respondent No.1 has communicated its decision to the Collector in view of clause 4.1. of the policy, the writ petitioner is not entitled to compassionate appointment.
7. As per clause 2.1. of the policy in question only wife and husband are treated dependent as the case may be on a government employee and they have first right to claim the compassionate appointment, in case wife or husband as the case may be is ineligible then he /she can nominate son or unmarried daughter. The nomination of a son who should be unemployed and not have any source of income, therefore, survival either wife or husband cannot nominate son who is already in employment. The son who is in employment is not entitled to claim a compassionate appointment. Son means who is not in employment. The son who is already in regular employment constitute his own family hence he is seized to be a member of the family 21 Item No. 24/Court-4 O.A. No. 61/2020 of the deceased employee. In the family of a working son, his brother has no claim. Hence, we are not inclined to interfere with the impugned order. The order passed by the Writ Court be complied with within a period of 60 from today.
Writ Appeal is hereby dismissed."
14. Learned counsel for the applicant also placed heavy reliance on a recent order dated 11.03.2024 passed by a coordinate Bench of this Tribunal in OA No. 3799/2022 titled Sh. Vicky Vs. Govt. of NCT of Delhi, the operative part of which reads as under:
"4. I have heard the brief arguments put forth by the learned counsel for the applicant. I am also conscious of the fact that appointments made on compassionate ground in a particular Establishment cannot be in excess of 5% of the direct recruitment vacancies in a particular year. Hence, at best the applicant could request for a consideration and even an indulgence shown by a Court could be only for a consideration in accordance with the Rules and instructions governing the subject; no specific or categorical direction for giving appointment could be made. This is also on account of the fact that merit of the claim of an applicant is to be determined strictly in accordance with his financial circumstances/level of hardship faced by the family. Typically, it is the comparative circumstances of various applicants that is to be determined [before selecting the ones who will fall within the 5% quota of appointment on compassionate grounds.
5. In the instant case, it is not in dispute that the case of the applicant has already been considered three times which indicates that the respondents have given a fair consideration to his case. However, since the applicant has approached this Court by way of the present OA, extending the spirit of compassion as also judicial consideration, I dispose of this OA with a direction to the competent authority amongst the respondents to give one further opportunity to the claim of the applicant and place his case before the next meeting of the Screening Committee and, thereafter, take an appropriate decision in accordance with the relevant rules and instructions governing the subject. The decision so taken shall be conveyed to the applicant by way of an appropriate communication.22
Item No. 24/Court-4 O.A. No. 61/2020
6. While disposing of the OA with the limited direction given above, I would like to emphatically state that nothing in this order is to be read as an opinion on the merit of the claim of the applicant."
Keeping in view the aforesaid order, she humbly prayed for reconsideration of the case of applicant's younger son for compassionate ground appointment, by drawing specific reference to para 6 of the minutes of meeting (Annexure R-
2), which reads as under:
"6. Standing Order No. 39 / 2018 issued by Police Headquarters.
The Screening Committee has taken into consideration the request for compassionate appointment even where the death or retirement on medical grounds of a Govt. Servant took place long back say 10 years or above. A balanced and objective assessment of the financial condition of the family has been taken into account i.e. assets and liabilities including the benefits received under the various welfare scheme, and all other relevant factors such as the presence of an earning member, size of the family, ages of the children and the essential needs of the family etc. While considering a request for compassionate appointment, the Screening Committee referred to the past practices that were followed by previous committees. The cut off date for age determination was fixed as on date of application/ request made by the applicant. The Screening Committee after taking into account all the above factors and the availability of posts calculated on the basis of ceiling of 5% upto 31-12-2018 has approved 276 cases (out of 367 cases i.e. 276 fresh and 91 reconsideration cases) for appointment on compassionate grounds.........................."
15. Heard the learned Counsel for the respective parties and perused the pleadings/judgments placed on record.
16. From a perusal of Annexure R-2 referred to hereinabove, it is evident that out of total 367 candidates considered by the Screening committee, 276 were fresh 23 Item No. 24/Court-4 O.A. No. 61/2020 candidates and 91 candidates were those whose cases were reconsidered, which clearly establishes that respondent - Delhi Police has a provision to reconsider the cases, where in the earlier round of screening, compassionate appointment has been denied. On a specific query made by this Tribunal to the learned counsel for the respondents whether there is a policy with regard to reconsideration, it is clarified by way of written synopsis that there is no separate written policy to reconsider the request of the dependents of deceased Police personnel on compassionate ground and at present, the requests of the dependents of deceased employees are considered on the basis of Standing Order No.Welfare/04/2022 and Circular No.490-589/AC- CG/Welfare/PHQ dated 09.11.2022 regarding relative merit points system for allocation of points for various attributes. However, in belated cases the candidate can apply as long as he/she has not attained the maximum age prescribed for the post applied for and the cut-off date for fixing the age shall be the date of application, subject to fulfilling other eligibility criteria.
17. In the instant case, it is not in dispute that the sole ground of rejection of applicant's request seeking compassionate appointment of her younger son, was that her elder son is working in 'Indian Army', whereas the fact 24 Item No. 24/Court-4 O.A. No. 61/2020 remains that her deceased husband had already disowned him much prior to his death and the family has not been getting any care or financial support from him. Moreover, there is a clear provision of consideration of such cases in terms of clause 6(a) of Delhi Police Standing Order No.39/2018 read with Clause 11(a) of DoPT Master Circular dated 02.08.2022 and Point 18 of DoPT FAQs on scheme of compassionate appointment etc.
18. Therefore, keeping in view various judicial pronouncements and the rules/instructions governing the subject, I deem it appropriate to direct the respondents to reconsider the case of the applicant's younger son and, if he is otherwise found eligible, place the same before the next Screening Committee to take an appropriate decision in accordance with the rules/instructions. The decision so taken shall be communicated to the applicant forthwith by passing a reasoned and speaking order.
19. With the above directions, the O.A. stands disposed of. It is made clear that I have not expressed any opinion on the merits of the case. There shall be no order as to costs.
(Dr. Anand S Khati) Member (A) /jyoti/