Central Administrative Tribunal - Gauhati
Dhanjit Bayan vs Union Of India (Uoi) And Ors. on 5 September, 2005
Equivalent citations: 2006(1)SLJ188(CAT)
ORDER
G. Sivarajan, J. (Vice Chairman)
1. Both these cases relate to grant of compassionate appointment to dependents of Postal Department employees who had died in harness under a scheme for compassionate appointment published by the Government of India, Department of Personnel and Training (for short DOPT) O.M. No. 14014/6/94-Estt. (D) dated 9.10.1998 and subsequent orders. Since both these applications relate to the compassionate appointment under the dying in harness scheme in the Postal Department and since the issues involved in both these cases are common these two cases are being disposed of by a common order.
2. Heard Mr. B. Pathak, learned Counsel for the applicants and Mr. A.K. Chaudhuri and Ms. U. Das, learned Addl. C.G.S.C. for the respondents in O. A. Nos. 234/2004 and O. A. 85/ 2005 respectively.
3. The applicant in O.A. No. 234 of 2004 is the son of late Upendra Nath Bayan who died while in service as a Group 'D' employee on 1.6.1999. The applicant, it is stated, had obtained a death certificate of his father on 17.7.1999 and applied to the third respondent on 9.8.1999 for appointment to a Group 'C, 'D' post on compassionate ground under the scheme of the Central Government. The applicant, it is stated, had submitted reminder representations on 3.10.2000, 19.1.2001 and ultimately on 25.5.2002. Since there was no response from the respondents, the applicant had filed O.A. No. 394/2002 before this Tribunal. The said O.A. was disposed of by order dated 2.1.2004 (Annexure-F). The respondents were directed to consider the case of the applicant for compassionate appointment with utmost sympathy to any Group 'C or 'D' post available with the respondents to which the applicant is entitled as per rules and regulations relating to compassionate appointment. Pursuant to the said direction, the respondents have passed an order on 7.5.2004 (Annexure-G) rejecting the representation of the applicant. The applicant has impugned the said order in this application.
4. The applicant in O.A. No. 85 of 2005 is the daughter of late Asit Ranjan Purkayastha, SPM, Churaibari under Dharmanager Sub-Division, North Tripura who died in harness on 29.5.2000. The applicant after obtaining the death certificate of her father applied to the forth respondent on 15.9.2000 for appointment on compassionate ground. The fourth respondent thereupon by letter dated 18.9.2000 directed the applicant to submit application in prescribed form. The applicant, it is stated, has complied with the same. The respondents by communication dated 12.3.2002 (Annexure-D) informed the applicant that her request for compassionate appointment could not be recommended by the Circle Relaxation Committee (for short CRC) due to non-availability of vacancy. It is the case of the applicant that the respondents gave assurance to the applicant that her case for compassionate appointment will be considered in due course, but no communication was made by the respondents in this regard. The applicant after seeing advertisement published in the newspaper calling for application for 37 posts under the respondents requested the respondents by representation dated 5.4.2004 (Annexure-E) for giving appointment to her. Since the said representation was not considered, the applicant filed O.A. No. 163/2004 before this Tribunal, which was disposed of by order dated 28.7.2004 (Annexure-G). The applicant was directed to file representation to the respondents narrating the grievances within two weeks and the respondents were directed to give reasoned reply within six weeks from the date of receipt of the representation. The applicant accordingly made a representation dated 30.8.2004 (Annexure-H). The second respondent disposed of the said representation by order dated 22.9.2004 (Annexure-I) rejecting the request of the applicant.
5. The reason for rejecting the applications for compassionate appointment sought for by the applicant in both these cases is that sufficient number of vacancies in the Circle Office/Division were not available for giving compassionate appointment to the applicants. In one case, it is stated that one vacancy which was available for appointment on compassionate ground was given to a more deserving hand than the applicant. There is a quota of 5% of Direct Recruitment vacancies fixed for appointment on compassionate ground.
6. In order to appreciate the justifiability of the rejection orders passed by the respondents in both these cases it is necessary to advert to the scheme for compassionate appointment. A study report prepared by the Department of Administrative Reforms and Public Grievances in 1990 made certain recommendations which were accepted and communicated by the Government of India, DOPT O.M. No. 32/4/98-Welfare dated 29.7.1998. The said O.M. contains the following recommendations:
1. The Department of Personnel and Training should revise its instructions so as to define the term 'near relative' and to include a wife or husband or brother or sister of the deceased Government servant as a beneficiary of the scheme of compassionate appointments.
2. The power to relax limit of 5% of direct recruitment vacancies for making compassionate appointments should be vested with the Secretary in the Ministries/Departments of Government of India.
3. The Ministries/Departments should ensure that the compassionate appointments are made on means-cum-merits basis.
4. The Welfare Officer in each Ministry /Department should meet the members of the family of the deceased Government servant immediately after his death to advise and assist them in getting appointment on compassionate grounds. The applicant should be called in person at the very first stage and advised in person about the requirements and formalities to be completed by him.
5. A time norm of 6 to 8 weeks should be fixed for making compassionate appointments.
6. The Department of Personnel and Training should make arrangements for a periodic review of cases of compassionate appointments dealt with the Ministries/Departments with a view to reduce delay and to get feedback on the problems faced by Ministries/Departments in the implementation of the scheme of compassionate appointments.
7. The officer dealing with compassionate appointments should be made to understand the scheme of compassionate appointments and its objectives so that They take a more humanitarian approach towards processing the cases of compassionate appointment.
8. Wherever the cases are screened by a Board/Committee of Officers, the frequency of the meeting of such Board/Committee should be increased to once a month so that the applications do not remain unattended for long.
9. The Ministry of Defence should allow candidates selected for compassionate appointment to join on a provisional basis pending detailed verification of their character antecedents. Such candidates may, however, be given some non-sensitive charges till completion of detailed verification of their character antecedents.
The relevant Paragraphs 3.16.3, 3.16.4, 3.16.5 of the report are also extracted:
3.16.3 Appointments on need-cum-economic status basis It is provided in the instructions/guidelines issued by the Department of Personnel and Training that the Appointing Authority should be selective in its approach and the economic status of the family and benefits received by the family of the deceased Government servant should be kept in view while considering the cases of compassionate appointment. It was observed that some of the Ministries/ Departments/Organisations are not considering this aspect at all. There appears to be a lot of discretion in this regard which may be exercised in favour or against the applicant. The Department of Personnel and Training should consider providing some guidelines for ascertaining the need and economic status of the family of the deceased Government servant. Some of the parameters which can be considered in this regard are (i) income of the family of deceased Government servant; (ii) educational qualifications of the members of the family of the deceased Government servant: (iii) number of dependents and (iv) assets and liabilities left by the deceased Government servant. The Department of Personnel and Training should also reiterate its instructions from time to time to ensure that appointments are made on need-cum-economic status basis and that the latter factor is not ignored by the Appointing Authority.
3.16.4 Guidance and Assistance to the family of the deceased
(i) It was observed that processing of application for compassionate appointment is often delayed on the ground that the application is not in the proper proforma. The dealing officials take their own time to advise the applicant to send application in the prescribed proforma and to furnish necessary details. Moreover, the information is called for piecemeal. In this process applicants who are not familiar with the procedure are made to run from pillar to post.
(ii) It is suggested that a system of calling the applicant in person at the very initial stage as done in the Ministry of Railways, should be adopted by the other Ministries/Departments/Organizations so that the applicant can be advised in person about the requirements and formalities to be completed by him. Since the entire scheme of compassionate appointment is a welfare measure, the Welfare Officer in each Ministry/Department should be required to meet members of the family of the deceased Government servant immediately after his death, and to advise and assist him applying for appointment on compassionate grounds in a correct manner so that the application can be processed speedily.
3.16.5 Fixing time norms for making compassionate appointment and review by the Department of Personnel and Training.
(i) Department of Personnel and Training should also consider fixing some reasonable time limits, say 6 to 8 weeks, for making compassionate appointments. The cases which cannot be considered on account of non-availability of vacancies may, however, be not subjected to this limitation.
(ii) It was felt that there was a lack of feedback and the review of the implementation of the instructions of the Department of Personnel and Training.
The Government had accepted the said recommendations by forwarding copy of the recommendations and the Welfare Officers attached to the Ministry/Department were directed to take action on recommendation No. 4 of the report as and when such cases arise in their respective Ministry/Department. The Government of India DOPT in O.M. No. 14014/6/94-Estt. (D) dated 9.10.1998 with reference to the above recommendations had revised/simplified the procedure for compassionate appointment and published the same in the form of a scheme for compassionate appointment which has superceded all the existing instructions on the subject. The recommendations and the scheme are contained in Chapter 32 under the caption "Compassionate Appointments" in Swamy's Complete Manual on Establishment and Administration for Central Government Offices, 9th edition-2003. The Scheme provides the object, the person to whom it is applicable, the authority competent to make compassionate appointment, the posts to which such appointment can be made, exemptions and relaxations. Clause 7 provides for determination/ availability of vacancies which reads as under:
Determination/Availability of Vacancies
(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.
(b) Compassionate appointments can be made up to a maximum of 5% of vacancies falling under direct recruitment quota in any Group 'C or 'D' post. The Appointing Authority may hold back up to 5% of vacancies in the aforesaid categories to be filled by direct recruitment through Staff Selection Commission or otherwise, so as to fill such vacancies by appointment on compassionate grounds. A person selected for appointment on compassionate grounds should be adjusted in the recruitment roster against the appropriate category, viz., SC/ST/OBC/General depending upon the category to which he belongs. For example, if he belongs to SC category, he will be adjusted against the SC reservation point, if he is ST/OBC he will be adjusted against ST/OBC point and, if he belongs to General category he will be adjusted against the vacancy point meant for General category.
(c) While the ceiling of 5% for making compassionate appointment against regular vacancies should not be circumvented by making appointment of dependent family member of Government servant on casual/daily wage/ ad/hoc/contract basis against regular vacancies, there is no bar to considering him for such appointment, if he is eligible as per the normal rules/orders governing such appointments.
(d) The ceiling of 5% of direct recruitment vacancies for making compassionate appointment should not be exceeded by utilizing any other vacancy, e.g., sports quota vacancy.
In the original scheme published by the DOPT there are two more sub-clauses which reads as follows:
(e) Employment under the scheme is not confined to the Ministries/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 upon availability of a suitable vacancy meant for the purpose of compassionate appointment.
(f) If sufficient vacancies are not available in any particular office 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/Officers of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list.
Various other matters including Court decisions are specified in the scheme. Another Government order O.M. No. 14014/18/2000-Estt.(D) dated 26.2.2001 modified the O.M. dated 9.10.1998. It has been decided that in future the Committee for considering the request for appointment on compassionate ground should take into account the position regarding the availability of vacancy for such appointment and should limit its recommendation to appointment on compassionate grounds only in a really deserving case and only if vacancy meant for appointment on compassionate grounds will be available within a year in the concerned administrative Ministry /Department/Office, that too within the ceiling of 5% of vacancies falling under Direct Recruitment quota in any Group 'C or 'D' post prescribed in this regard in Para. 7(b) of O.M. dated 9.10.1998. Another Government order O.M. No. 14014/24/99-Estt. (D) dated 28.12.1999 provides for Calculation of Vacancies by Grouping of posts which is reproduced below:
(9) Calculation of Vacancies by Grouping of Posts.--The question of nonavailability of vacancies for appointment on compassionate grounds within the ceiling of 5% of vacancies falling under direct recruitment quota in any Group 'C or 'D' post prescribed in this regard in Paragraph 7(b) of O.M. No. 14014/6/94-Estt.(D),dated 9.10.1998 [Order (2) above] particularly in small Offices/Cadres has been considered by the Government keeping in view difficulties being experienced in this regard even in genuine/deserving cases.
1. Accordingly, it has been decided to allow grouping of posts in small Offices/Cadres for the purpose of calculation of vacancies for appointment on compassionate grounds. Consequently, Group 'C'/'D' posts in which there are less than 20 direct recruitment vacancies in a recruitment year may be grouped together and out of the total number of vacancies, 5% may be filled on compassionate grounds subject to the condition that appointment on compassionate grounds in any such post should not exceed one.
2. It is also clarified that for the purpose of calculation of vacancies for compassionate appointment, fraction of a vacancy either half or exceeding half but less than one may be taken as one vacancy."
There is another order issued by the DOPT exclusively for postal department in letter bearing No. 24/157/78-SPB-I dated 14.7.1978 which reads as follows:
(1) Delegation of powers of constitution of committees.--In pursuance of the revised policy, it has been decided to further delegate powers to make compassionate appointments (in the grade of Clerks or any Group 'C post of comparable rank of Group 'D' post in which there is direct recruitment) of widows/sons/daughters of P&T employees who die harness and leave the family in indigent circumstances to Heads of Circle, etc., declared as Heads of Department under SR 2(10) if more than five years have not elapsed between the date of application for employment and the date of death of the employee. For this purpose in each Circle (except in Delhi Postal Circle and J & K Circle), a Committee consisting of the Heads of Circle, etc., and two senior Directors should be constituted. In Delhi Postal Circle, the Committee will consist of PMG and DPS and in J & K Circle, it will consist of PMG/ GMT and APMG/AG. The Committee should scrutinize all such cases and decide them keeping in view guidelines provided by the Department of Personnel and AR. Such appointments must conform to the provisions regards eligibility, etc., of the relevant Recruitment Rules except the condition of merit and nomination by Employment Exchange. The cases requiring relaxation of educational qualifications and age-limits and in which there is already one earning member in the family if recommended by the Committee will continue to be referred to the Directorate as at present. Similarly, the cases in which more than five years have elapsed between the date of death and the date of application will, if recommended by the Committee, be also referred to the Directorate. But in doing so, it should be borne in mind that the main objective of such compassionate appointments is largely related to the need for immediate assistance to the bereaved family. If more than five years had passed between the date of death and the date of application for appointment, it would appear that the family had some other means of subsistence and was in a position to tide over the crisis resulting from the death of the earning member. In such cases, it should be enquired as to why the widow failed to apply for employment in time and whether all children were minors at the time of death of the employee. Enquiries should also be made as to how the family sustained itself during the interim period.
The object of the scheme is stated in Clause 1 of the scheme thus:
The object of the Scheme is to grant appointment on compassionate grounds to a dependent family member of a Government servant dying in harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood, to relieve the family of the Government servant concerned from financial destitution and to help it get over the emergency.
The Government order and the scheme read along with the recommendations were accepted and implemented by the Government. It is relevant in this context to note one important clause in the scheme i.e. Clause 8(b) which reads as under:
(b) Whether a request for compassionate appointment is belated or not may be decided with reference to the date of death or retirement on medical ground of a Government servant and not the age of the applicant at the time of consideration.
The Government order containing the recommendations in the study report on employment on compassionate grounds and the scheme published as per O.M. No. 14014/6/94-Estt. (D) dated 9.10.1998 mandates that on the death of a Government servant while in service the dependant the widow, son or the daughter of the deceased must be called/contacted at the very initial stage so that they can be advised in person about the requirements and formalities to be complied by them. This, it is stated, is for the reason that the entire scheme for compassionate appointment is a welfare measure and therefore, it is the duty of the Welfare Officer in each Ministry/Department/Officer to meet the members of the family of the deceased Government servant immediately after his death and to advise and assist them in applying for appointment on compassionate grounds in a correct manner so that the application can be processed speedily. The application for compassionate appointment so filed should be disposed of within six to eight weeks subject to limitation of availability of vacancies. It was also stated that the Committee for considering the application for appointment on compassionate grounds must meet frequently as far as possible every month. The object of giving compassionate appointment to dependents of Government servant dying in harness as stated in the Clause 1 of the scheme is to relieve the family of the Government servant concerned from financial destitution and to help him to get over the emergency. The decision of the Supreme Court in Auditor-General of India and Ors. v. G. Anantha Rajeswara Rao, has upheld the scheme of appointment on compassionate grounds to the son or daughter or widow of the Government servant who died in harness only on the grounds of immediate need of assistance in the event of their being no other earning member in the family to supplement the loss of income from the breadwinner to relieve the economic distress of the members of the family. Again the Supreme Court in Umesh Kumar Nagpal v. State of Haryana and Ors., had observed that the whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family of the deceased from financial destitution and to help him to get over the emergency. All the above matters stated in the Government O.M. dated 9.10.1998 was intended for the guidance of the Head of the Departments and the Welfare Officers of each department. In short, the Government order mentioned above and scheme published under the said order is intended for the officers to expedite the matters of compassionate appointment keeping in mind the object of granting compassionate appointment. In other words, if there are lapses or laches on the part of the officers under whose jurisdiction a Government servant dies in harness the dependents of the Government servant dying the harness will be deprived of the benefit of the scheme. As already stated, the object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family of the deceased from financial destitution and to help them to get over the emergency. The Supreme Court in its various decisions had clearly stated that compassionate appointment cannot be granted after lapse of a reasonable period and it is not a vested right which can be exercised at any time in future. . Thus, if the Ministry/Department/Office keeps an application for compassionate appointment without any action under one pretext or other and the matter is delayed for one or two years the Supreme Court decision will operate against the applicant and thereby he is deprived of the benefit of the scheme for no fault of the applicant.
7. As already noted, compassionate appointment can be made only against Group 'C and 'D' posts to which the direct recruitment can be resorted to. A quota of 5% of direct recruitment vacancies is also prescribed under the scheme for compassionate appointment. In the scheme of 1998 Clause 7(e) provides that the employment under the scheme is not confined to the Ministry/Department/Office in which the deceased Government servant had been working. Such an appointment can be given anywhere under the Government of India depending upon the availability of a suitable vacancy meant for the purpose of compassionate appointment. Clause 7 (0 further provides that if sufficient vacancies are not available in any particular office to accommodate -the person in the waiting list for compassionate appointment it is open to the administrative Ministries/Department/Office to take up the matter with other Ministries/Departments/Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list. These provisions were available in the scheme till 26.2.2001, for as per O.M. dated 26.2.2001 the O.M. dated 9.10.1998 was modified. As per the modified scheme, the Committee for considering the requests for appointment on compassionate grounds should take into account the position regarding the availability of vacancy for such appointment and should limit its recommendation to appointment on compassionate grounds only in a really deserving case and only if vacancy meant for appointment on compassionate grounds will be available within a year in the concerned administrative Ministry/Department/Office, that too within the ceiling of 5% of vacancies falling under Direct Recruitment quota in any Group 'C or 'D' post. By the Government order dated 28.12.1999 regarding calculation of vacancies by grouping of posts the Government of India decided to allow grouping of posts in small offices/Cadres for the purpose of calculation of vacancies for appointment on compassionate grounds as per which Group 'C'/'D' posts in which there are less than 20 direct recruitment vacancies in a recruitment year may be grouped together and out of the total number of vacancies, 5% may be filled on compassionate grounds subject to the condition that appointment on compassionate grounds in any such post should not exceed one. It is in this context Clause 8(b) of the Scheme comes into play. It has already been extracted above which says that the application has to be decided with reference to the date of death of a Government servant and not the age of the applicant at the time of consideration. Thus, the date of death of the Government servant is the crucial date for deciding the eligibility for appointment on compassionate grounds.
8. Now, I will come to the present two cases. As already stated, the father of the applicant in O.A. 234 of 2004 died on 1.6.1999 and the father of the applicant in O.A. 85 of 2005 died on 29.5.2000. In view of Clause 8(b) of the Scheme of 1998 the eligibility for granting compassionate appointment has to be decided with reference to the date of death of the Government servant concerned. In other words, the law as it stood on that day will apply to the applicants' case. Admittedly, the scheme of 1998 in its original form i.e. as it stood prior to 26.2.2001 will apply to the present cases. As already noted, by virtue of Clause 7(e) and (f) if there are no vacancies in the administrative Ministries/Department/Office in which the deceased Government servant had been working the applicants can be given appointment anywhere under the Government of India depending upon the availability of suitable vacancies meant for the purpose of compassionate appointment and it is the duty of the administrative Ministries/Department/Office to take up the matter with other Ministries/Departments/Offices of the Government of India to provide at an early date appointment on compassionate grounds to the applicants.
9. From the facts stated in Paras 2 and 3 of this judgment it can be seen that the Head of the Departments/Welfare Officers attached to the office, where the deceased Government servant was working, neither made any effort to call the dependents of the deceased Government servants to the office nor visited the house of the deceased Government servant, as the case may be, to apprise them of the scheme and the formalities to be complied with in applying for compassionate appointment. These resulted in the applicant in O.A. 234/2004 filing the application only on 9.8.1999 i.e. after two months. Similarly, the applicant in O.A. 85/2005 had filed the application only on 15.9.2000 whereas her father died on 29.5.2000 i.e. approximately four months after the death of her father. It is also seen that the respondents did not take any active steps keeping in mind the object with which the compassionate appointments are being made. Though various representations have been made by the applicant in O.A. 234/2004 from 1999 onwards the applicant was not considered by the authorities in the manner they were expected to consider. Inspite of the directions issued by the Tribunal also, the respondents have dealt with the matter in a casual way. The order dated 7.5.2004 (Annexure-G in O.A. 234/2004) noted the facts that the Government servant concerned expired on 1.6.1999 and the applicant had filed application for compassionate appointment on 9.10.2000. It is also stated that the application was processed and kept ready for placing the same before the Circle Selection Committee (for short CSC) but the applicant filed O.A. 394/2002 before this Tribunal and the Tribunal disposed of the case on 2.1.2004. The respondents have then referred to the guiding principles, yardsticks and parameters for compassionate appointment laid down by the Supreme Court and stated that the case of the applicant has been considered and rejected by the CSC on the ground that there are more deserving cases than that of the applicant to fill up the limited available posts and that the number of dependents in the family of the applicant are less relatively in comparison to that of other candidates. It is also stated that as per the object of the scheme, compassionate appointment is considered to render immediate assistance for relief from financial destitution to the most indigent and deserving family left behind by the deceased employee and that in the instant case no such situation has been found prevailing on considering the case. Similarly, in the order dated 22.9.2004 (Annexure-I in O.A. 85/2005) it is stated that the application filed by the applicant was received on 31.1.2001; the case was examined by the Circle Recruitment Committee alongwith other requests; as there was no vacancy in compassionate quota under the stipulated 5% of direct recruitment vacancies, the applicant's case could not be considered for compassionate appointment. Regarding 37 posts advertised for appointment it is stated that the vacant posts were meant for different divisions/unit for the purpose of recruitment under the direct recruitment quota for the circle as a whole. The respondents in their written statement in O.A. 85/2005 has stated that the case of the applicant was considered by the CRC on 29.11.2001 but her case was not found eligible due to non-availability of requisite vacancy and that the some other case found more deserving than that of the applicant were recommended to fill up the limited available vacancies in the given period. Regarding Clause 7 (e) and (f) of the scheme for compassionate appointment of 1998 it is stated that the practice of circulating the names of deserving/wait listed applicants to other Ministries/ Department/Office was discontinued vide Department order No. 37-16/2001-SPV-l dated 25.7.2001 in pursuance of the new policy guidelines framed by the DOPT, Ministry of Personnel, Public Grievances and Pensions, Government of India. The case of the applicant, it is stated, arose much later than the Government notification and as such question of referring his case to other Ministries/Departments/ Offices for appointment on compassionate grounds did not arise. It is further stated that the system of maintaining a wait list of approved applicants for compassionate appointment was also discontinued w.e.f. 8.2.2001 vide departments order No. 24-1/99-SPB-I dated 8.2.2001 issued pursuant to the new policy issued in the O.M. dated 24.11.2000. The decisions of the Supreme Court is also relied. Further it is stated that the applicant applied for compassionate appointment in a Group 'C or 'D' post; his case was considered for the post of Group 'D' as she is entitled to being a matriculate; there is no provision in rules/policy that the applicant could have been appointed in the post applied for on compassionate grounds. The claim of the applicant for a GDS post at this stage is legally impermissible. It is stated that the applicants who were approved for compassionate appointment prior to the year 2002 were offered absorption in GDS post to mitigate their hardship.
10. The applicant in O.A. 234/2004 filed a rejoinder and the respondents also filed reply to the said rejoinder.
11. The respondents in this case, according to me, did not bear in mind the recommendations made in the study report which was approved by the Government and the scheme of 1998 issued by the Government while considering the application submitted in the matter of compassionate appointment to the applicants. The respondents never called the dependents of the deceased Government servants to inform them about the formalities to be complied with in the matter of compassionate appointment. Even when the applicants had filed applications, they did not take any appropriate step either for rectifying the mistake, if any, in the applications or for placing the applications before the Committee constituted for the purpose at the earliest opportunity. It is also not clear as to whether the committee constituted for considering the applications for compassionate appointment was sitting regularly once in a month or at least, once in three months. As per the scheme, the applications for compassionate appointment have to be disposed of within six to eight weeks. In the instant case, the respondents have kept the applications pending for years together i.e. the application submitted by the applicant in O.A. 234/2004 on 9.8.1999 was kept pending till 7.5.2004 and that too an order was passed on 7.5.2004 pursuant to a direction issued by this Tribunal. The respondents are thoroughly at lapses and laches in the matter of dealing with the applications for compassionate appointment submitted by the applicant. They did not advert to the fact that an application submitted belatedly also has to be considered with reference to the date of death of the Government servant. In the instant case, the consideration was with reference to the date on which the application was taken for consideration and it is with reference to that the orders have been passed. If the respondents had noted that the crucial date for consideration of the application was the date of death of the Government servant as provided under Clause 8(b) of the scheme, they should have applied the provisions of Clause 7(e) & (f) and also would have kept approved list for compassionate appointment, instead of telling the applicants that there is no vacancy available at 5% quota for compassionate appointment. That apart, under Clause 7(e) it is not only the vacancy available in a particular division or a circle which is relevant for the purpose of determining 5% vacancies, it is the whole Department/Office/Ministry. If there is no vacancy in the office in which the deceased Government servant was employed, the vacancy in the department has to be considered and if there is no vacancy in the department, then the vacancy in the Ministry has to be considered. Even if there was no vacancy in these places the Head of the Departments had to address the matter to other Departments/Offices/ Ministries. But nothing had been done. Not only that the respondents have slept over the matter without any regard to the Government orders and the scheme issued thereunder now they are contending that the applications are belated; that the object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family of the deceased from financial destitution and to help to get over the emergency and that since that stage has crossed, the applicants could not be granted reliefs. Such an attitude on the part of the respondents cannot be approved since they had not done their part of the obligation under the Government orders and the scheme. If as a matter of fact, the respondents had called the applicants and informed them of the scheme and its formalities and if notwithstanding the above there was dereliction on the part of the applicants it may be open to the respondents to rely on the decisions of the Supreme Court and say that the applicants cannot be granted reliefs at a later stage. The attitude taken by the respondents in the present cases has only to be deprecated.
12. To put it shortly, the impugned orders are patently illegal and had been passed in total disregard and in violation of the provisions of the Government orders dated 9.10.1998 as it stood at the relevant time i.e. the date of death of the Government servant in both the two cases. I, accordingly, quash both the orders dated 7.5.2004 (Annexure-G in O.A. 234/ 2004) and 22.9.2004 (Annexure-I in O.A. 85/2005). It direct the respondents to consider the case of the applicants with reference to the Government order dated 9.10.1998 and the scheme issued thereunder as it stood during the relevant period i.e. the date of death of the Government servant in both the cases particularly with reference to Clause 7(e) and (f) of the scheme which I have already extracted earlier in this judgment. This exercise will be done by the concerned authority within a period of four months from the date of receipt of this order. The decision so taken will be communicated to the applicants in both these cases immediately thereafter.
Both these two O.As. are allowed as above.