Central Administrative Tribunal - Delhi
Dharam Singh S/O Late Shri Dhan Pal Singh vs The Chief Secretary, Govt. Of N.C.T. Of ... on 23 November, 2007
ORDER Meera Chhibber, Member (J)
1.This is the fifth round of litigation. Earlier three OAs had been filed by the applicant and one RA by the Respondents. Applicant has challenged order dated 30.09.2005 in the present OA whereby his request for compassionate appointment has been rejected by observing as under:
xxxx the family members / dependents of the deceased are adult, the family pension of Rs. 2,500/- + DA being received by the family, the family had received the terminal benefits to the tune of Rs. 2,69,480/-, further as the family is having its own house and taking into account the whole case in totality in all the respects, the Screening Committee concluded that the family of the deceased Government Servant did not seem to be living in indigent circumstances and therefore, did not recommend the case of Shri Dharam Singh S/o Late Sh. Dhani Pal Singh for appointment on compassionate grounds.
2. Counsel for applicant has challenged the above order basically on two grounds. Firstly, Respondents have taken into consideration wrong facts because from the counter reply it is clear that they had taken 5 persons as dependants of the deceased employee, whereas in fact, there are 8 dependents of the deceased employee. To substantiate his argument, counsel for the applicant relied on page 113, para-2 along with page 119-121, i.e. copy of Ration Card to show that there were indeed 7 persons, who were dependant on the deceased employee. He has also referred to an affidavit placed at page 123 and a certificate issued by Gram Pradhan to show that apart from 4 children, mentioned in the Service Book of the deceased employee, there were two more daughters who have since been married and the house was also sold at the time of their marriages, therefore, case should be directed to be reconsidered as per these facts.
3. The second contention raised by the counsel for applicant is that once the applicant was recommended by the Screening Committee initially, a different view could not have been taken by the subsequent Screening Committees unless the whole recommendations were scraped by the respondents. He also submitted, a duty is cast on the respondents, to show that no one below the applicant had been given compassionate appointment. He also submitted that in the impugned order, respondents have once again referred to the O.M. dated 09.10.1998, whereas in the first OA this Tribunal had already held that the said OM was not to be taken into consideration. Therefore, in order to give justice, the matter may again be referred back to the authorities with direction to reconsider the case of applicant by taking 8 dependants of the deceased employee into consideration. He relied on the judgment of Hon'ble Supreme Court in the case of Balbir Kaul and Anr. v. Steel Authority of India Ltd. and Ors. reported in 2000 (6) SCC 493. He strenuously argued that due to technical mistake committed by the applicant or the deceased employee of not mentioning the right number of dependents, applicant cannot be denied compassionate appointment.
4. Respondents have opposed this O.A. They have submitted that compassionate appointment cannot be sought as a matter of right. Since there were large number of applications, compassionate appointment cannot be given to all the applicants and it is only the most deserving candidates, who alone can be given the same, that too subject to availability of vacancy. They have also stated that in L.I.C. v. Asha Ram Chandra Ambedkar and Ors. JT 1994 (2) SC 83, it has been held by the Hon'ble Supreme Court that High Courts and Tribunal cannot give directions for appointment on compassionate grounds but can only direct to consider the case for such appointment. The department has reconsidered the case not once or twice but thrice, but since there were more deserving cases and applicant had not been found in penurious condition, his request had rightly been rejected by the competent authority.
5. On merits, they have submitted that in the original application given by the applicant himself, 5 members had been shown as dependants. Even the widow of the deceased employee had given in writing that she has four children in the family - 3 sons and a daughter viz. Karanvir Singh, Dharam Singh, Km. Laxmi and Dharmendra. Therefore, it is not open to the applicant now to set up a new case. They have also explained that even though applicant's name was recommended initially in the year 1998 along with a list of 162 candidates, but the same could not materialize from 1998 to the year 2001 due to large number of persons recommended by the Screening Committee. Therefore, the competent authority directed to examine the entire scenario afresh so as to provide immediate assistance to the most deserving families living in indigent conditions. Accordingly, all the cases were reconsidered by the Screening Committee on 12.7.2002 keeping in view the relative merits taking into account the age of dependants, total pension, terminal benefits, moveable/immovable property etc, but since applicant's condition was not found to be penurious, his case was not recommended by the Screening Committee.
6. The ceiling of 5% vacancies was fixed vide OM dated 26.09.1995. The Department had taken up the matter with the Government of India either to grant relaxation / increase in the percentage or to allow the Govt. to appeal before the Hon'ble Supreme Court, but the Government of India directed that appointment should be done in compliance with OM dated 26.09.1995, which restricts the appointments to 5% of direct recruitment in Group 'C' and 'D' posts only. They have also explained that in the initial list of 162 cases recommended for appointment to the post of Gr. IV DASS/LDC, applicant's name figured at serial No. 81 whereas only three candidates could be given appointment on compassionate ground that too in ex-cadre posts as per their suitability according to educational qualifications etc. etc. None of the other persons from the said list could be given compassionate appointment. They have also submitted that this list was placed before the Hon'ble High Court, as one of the persons, viz. Shri Raj Kumar Lohmorh had filed Writ Petition (Civil) No. 1594 of 2003, who was at serial No. 65 of the said list, whereas the applicant's name was at serial No. 81. The petitioner therein had also claimed that he be given compassionate appointment, but after perusing the records, stand of the respondents was upheld. It was specifically mentioned in the said judgment that names of 162 persons who were recommended in the year 1998 could not be accommodated due to non-availability of vacancies and only 3 candidates could be given compassionate appointment. The petitioner therein was only one of those 159 left over candidates recommended for appointment in 1998. It was also noted in the judgment that Government of NCT of Delhi sought relaxation for increasing the percentage of compassionate appointment to Government of India, but it did not accede to their request. It was in those circumstances, the competent authority took a view that genuine and deserving cases should be given compassionate appointment by examining the cases afresh. After noticing this, the Hon'ble High Court observed that appointment on compassionate ground cannot be permitted to turn into a scheme to gain Government job to those who may have lost a family member. It was intended to provide immediate succor to a family, which was in a state of penury and needed immediate relief. Accordingly, Respondents applied following criteria:
A. That the first priority would be for families, which are living in extremely indigent circumstances and having all children, who are less than 12 years of age and no other source of livelihood e.g. rent, ownership of a house etc. B. Next consideration can be given to cases, where the family is in extremely indigent circumstances and has minor children less than 18 years of age and no other source of employment.
After perusing the records, Hon'ble High Court declined to interfere in the matter or give the directions as sought by the petitioner in that case. Respondents have thus submitted that applicant cannot have a better claim than the person at Sl. No. 65. Therefore, this OA calls for no interference.
7. I have heard both the counsel and perused the pleadings.
8. It would be pertinent to mention here that Shri Raj Kumar Lohmorh was at serial No. 65 in the first list recommended in the year 1998 while applicant was at serial No. 81. I have also seen the list produced by the respondents. If Hon'ble High Court declined to interfere in the case of a person who was at serial No. 65, I do not see how applicant's case can be interfered with, when he was still much lower i.e. at serial No. 81 of the said list. It goes without saying that there were 78 persons above him who were not given compassionate appointment, even though they were also recommended in the said list. If none of those persons have been given compassionate appointment, applicant cannot have a better right than those persons to claim that he should be given compassionate appointment by jumping the line simply because he was recommended by the first Screening Committee. It goes without saying that the law on compassionate appointment has been well defined by the Hon'ble Supreme Court. It has been repeatedly held that compassionate appointment can neither be sought as a matter of right nor as a line of succession after the father or mother dies while in service. It has also been held that compassionate appointment cannot be claimed as an easy mode to gain entry into Government service de hors recruitment rules. This is only by way of an exception to the general rule compassionate appointment can be given only to such of the persons who are most deserving and are in such penurious condition that they cannot even survive unless they are given immediate assistance by the Department. It has also been held by the Hon'ble Supreme Court that compassionate appointment cannot be made as an easy step for gaining entry into Government service and only the most deserving persons are to be given compassionate appointment. In the process, naturally, those who are less deserving, get eliminated and they cannot make any grievance about it.
9. Even otherwise, perusal of the original records shows that at the time of making application for compassionate appointment, applicant had himself stated there were five dependants of the deceased employee. An affidavit was also given by the elder brother that he is already working gainfully and living separately from the family. The widow of the deceased employee had given in writing that she has only four children - 3 sons and 1 daughter and the elder son is married and living separately. As per the details given in writing, the family owns a house in their Village and the applicant had also given in writing that he is staying with other family members in the house owned by them in the Village. Similarly, an affidavit was filed by the widow and three other children to the effect that they have no objection in case compassionate appointment is given to the applicant. He had also filed copy of the ration card at that time, which showed there were total 6 members including the deceased employee. It is thus clear that it was on the basis of applicant's own application and the relevant records produced by the applicant and his family, that respondents took 5 members as dependants of the deceased employee, therefore, it is not open to the applicant now, to set up an absolutely different case and to find fault with the respondents that they had considered only 5 dependants wrongly instead of 8 dependants having been left by the deceased employee. In fact, even now there is contradiction. In the O.A. applicant has stated deceased had left behind 8 dependents but supporting documents shows only 7, therefore, his request is not tenable that case should be directed to be reconsidered by taking 8 dependents into consideration. Applicant cannot be allowed to set up a new case at this stage, in any case. Therefore, this contention is rejected.
10. As far as his contention that in the first O.A., the Tribunal had specifically observed that O.M. dated 09.10.1998 should not be taken into consideration while considering the case of the applicant, it seems, there is some confusion in the said judgment because in the first sentence of para-5, reference was made to the ceiling fixed for vacancies available against compassionate appointment quota, but reference was made to OM dated 9.10.1998; whereas the fact is that the ceiling of 5% was imposed by OM dated 26.09.1995. O.M. dated 09.10.1998 was not even discussed. In any case, without commenting on that further, it is relevant to note that after the first judgment given in OA No. 504/2003, applicant had filed two other OAs, being OA 468/2004 and OA 2789/2004. The second OA No. 468/2004 (pages 55-57) was disposed of at the admission stage itself without even issuing notice to the respondents by directing them to reconsider the matter and dispose it of by issuing a reasoned order within a period of three months. It goes without saying that once direction was given to reconsider the case, consideration done by the earlier Screening Committee loses its meaning. Obviously, after reconsideration, respondents were required to pass a fresh order. Pursuant to orders passed in OA No. 468/2004, respondents had issued order dated 29.9.2004 (page 60), which was again challenged by the applicant in the third OA, being No. 2789/2004. This time the order dated 29.9.2004 was quashed by observing that it was not a reasoned order. It is relevant to note that in the same judgment it was observed by the Tribunal that though sufficient reasons have been given by the respondents in the reply, to justify their stand, to reject the claim of the applicant, for compassionate appointment, as there were other deserving cases who were more indigent than that of applicant, yet for want of reasons, the OA was partly allowed (page 64). It is thus clear that the Tribunal in the third OA was satisfied with the reasoning given by the respondents, but had directed the respondents to pass a reasoned and speaking order. In view of above, it cannot be stated by the applicant that the recommendations made by the first Screening Committee still holds the filed and without scraping the same, a different view could not have been taken by the respondents specially when the action of respondents had already been upheld by Hon'ble High Court in the case of Raj Kumar Lohmorh. In view of the facts, as explained above, the contention raised by the counsel for applicant has to be rejected.
11. In fact, it is not even disputed by the applicant that all the dependants of the deceased are adult, family is having its own house apart from getting family pension of Rs. 2500/- + DA besides the terminal benefits paid to the tune of Rs. 2,69,480/-. From the records, it is also seen that the elder brother was already gainfully employed though he was living separately. Therefore, by looking into these facts, respondents came to the conclusion that this is not a case, which deserves to be granted compassionate appointment. I have already seen the records produced by the respondents and find that the case of applicant had been duly considered by the respondents and the same has been rejected on valid grounds as mentioned in para supra. The Hon'ble Supreme Court has repeatedly held that so long as the case has been considered by the authorities and rejected by returning a finding that this is not a fit case for grant of compassionate appointment, courts cannot sit in appeal over such orders and give directions that a person should still be given compassionate appointment. The only direction that can be given is to reconsider the case, but since respondents have already reconsidered the case of the applicant on number of occasions, therefore, this direction also cannot be given now. I am supported in taking this view by the judgment of Hon'ble Supreme Court in the case of LIC v. Asha Ram Chandra Ambedkar and Ors. reported in J.T. 1994 (2) SC 83.
12. In view of the discussion made herein above, I find no merit in the OA. The same is accordingly dismissed. No order as to costs.