Ajay Kumar vs Food Corporation Of India & Others
2012 Latest Caselaw 791 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 28 AFR
 

 
Case :- WRIT - A No. - 38692 of 2008
 

 
Petitioner :- Ajay Kumar
 
Respondent :- Food Corporation Of India & Others
 
Petitioner Counsel :- Vinod Sinha,Mahesh Sharma
 
Respondent Counsel :- N.P. Singh
 

 
Hon'ble Devi Prasad Singh,J.

Heard Shri Mahesh Sharma, learned counsel for the petitioner and Shri N.P.Singh, learned counsel for the respondents and perused the record.

While assailing the impugned order, it has been submitted by the learned counsel for the petitioner that the petitioner being son of deceased-government employee had move an application for appointment on compassionate ground.   The petitioner' father who was working as Assistant Grade-1 had died on 27.1.2005.  Immediately within two months, the petitioner has moved application on 28.2.2005 which was received  in the office of respondents. 

The petitioner's application was rejected by the impugned order relying upon the instruction received from Government of India dated 5.5.2003 which provides that in case petitioner's application is not considered within a period of three years, then compassionate appointment shall not be given.

While defending the impugned order, learned counsel for the respondents relied upon a case reported in 2009 AIR SCW 4427 M/s Eastern Coalfields Ltd. vs. Anil Badyakar & others whereby compassionate appointment was claimed 12 years after the death of employee  in harness.  The case of M/s Eastern Coalfield (supra) does not seem to be applicable in the facts and circumstances of the present case discussed here-in-after.

The impugned order has been passed on solitary ground that in view of Government Instructions dated 5.5.2003, the petitioner's case cannot be considered on account of lapse of three years.  

Learned counsel for the petitioner relied upon a case reported in (2009) 3 UPLBEC 2212 Hari Ram vs. Food Corporation of India and others.  Hon'ble Single Judge of this Court has struck down the Circular dated 5.5.2003 being violative of Articles 14 and 16 of the Constitution.  Learned counsel for the petitioner has also relied upon a judgment of Division Bench of this Court decided on 10.2.2012 passed in Writ-A  No. 7068 of 2012 Union of India through defence Secretary & others vs. Smt. Poonam Devi whereby the Division Bench of this Court relied upon a case of Hari Ram (supra)  directing the respondents to consider the petitioner's case ignoring the instructions issued by the Government of India dated 5.5.2003.  Keeping in view the aforesaid judgments (supra), impugned order does not seem to be sustainable.

However, learned counsel for the respondents had defended the impugned order stating that the petitioner's claim could not be considered in the absence of vacancy and not falling within the roaster provided for the purpose. The submission is that the delay has caused because of non-existence of vacancy and therefore the petitioner's  case could not be considered. 

So far as the impugned order is concerned, it has not been passed on the ground argued and disclosed in the affidavit.  Now, it is well settled proposition of law that the contents of an order may not be supplemented through affidavit vide AIR 1978 Supreme Court 851 Mohinder Singh Gill vs. Chief Election Commissioner. Accordingly, the order must stand on its own leg to fulfill the requirement of law. 

Since the impugned order has been passed only on the ground of bar created by the Government of India  which has already been struck down by this Court, the argument advanced by the learned counsel for the respondents does not seem to be sustainable. 

There is one other aspect of the matter that compassionate appointment is governed by the scheme which has been produced before this Court  during the course of hearing.  Under the scheme, Clause 6 contains exception with regard to compassionate appointment.  For convenience, Clause 6 of the said Scheme is reproduced as under:-

"Clause 6. A-  EXCEPTIONS

 Compassionate appointments are exempted from observance of the following requirements:-

(a)    Recruitment procedure i.e. without the agency of the Staff Selection Commission or the Employment Exchange.

(b)    Clearance from the Surplus Cell of the Department of personnel and Training/Directorate General of Employment and Training.

(c)     The ban orders on filling of posts issued by the Ministry of Finance (Department of Expenditure).

B- RELAXATION- Upper age limit could be relaxed wherever found to be necessary.  The lower age limit should, however, in no case be relaxed below 19 years of age.

NOTE I-   Age eligibility shall be determined with reference to the date of application and not the date of appointment.

NOTE II-    Authority competent to take a final decision for making compassionate appointment in a case shall be competent to grant relaxation of upper age limit also for making such appointment.

(b) Secretary in the Ministry/Department concerned is competent to relax temporarily eduction qualifications as prescribed in the relevant recruitment rules in the case of appointment at the lowest level e.g. Group 'D' or Lower Division Clerk post, in exceptional circumstances where the condition of the family is very hard provided there is no vacancy meant for compassionate appointment in a post for which the dependent family member in question is educationally unqualified.  Such relaxation will be permitted upto a period of two years beyond which no relaxation of educational qualifications will be admissible and the services of the person concerned, if still unqualified, are liable to be terminated. 

Note- In the case of an attached/subordinate office, the Secretary in the concerned administrative Ministry/Department shall be the competent authority for this purpose.

(c)   In the matter of exemption from the requirement of passing the typing test those appointed on compassionate grounds to the post of Lower Division Clerk will be governed by the general orders issued in this regard:-

      (i)   By the CS Division of the Department of Personnel and Training if the post is included in the Central Secretariat Clerical Service; or

       (ii)  By the Establishment Division of the Department of Personnel and Training if the post is not included in the Central Secretariat Clerical Service.

(d) Where a widow is appointed on compassionate ground to a Group 'D' post, she will be exempted from the requirement of possessing the educational qualifications prescribed in the relevant rules provided the duties of the post can be satisfactorily performed by her without possessing such educational qualifications."

A plain reading of Clause 6 (supra) reveals that the compassionate appointments are exempted from observance of recruitment procedure, clearance from the surplus cell of the department of personnel and the ban orders on filling of posts issued by the Ministry of Finance.   While passing the impugned order, the competent authority has not considered the provisions with regard to exemption.  

Apart from above, the appointing authority has got right to relax the condition with regard to age limit or educational qualifications etc. for making such appointment.  Meaning thereby, even if application was kept pending for about three years, it was open for the appointing authority to relax the condition.  Even if, Government of India's instructions  dated 5.5.2003 would have been made applicable, yet the appointment on compassionate ground is done to provide source of livelihood to the dependents of deceased employee.  

Ordinarily, compassionate appointment cannot be given in case application is not moved at an early date.  However, in case the dependent of deceased-employee had moved application immediately after death or within the reasonable period like in the present case, then merely because application was kept pending by the assessing authority for certain period, it shall not deprive the dependent of deceased-employee to seek appointment on compassionate ground being no fault on his or her part.  In case condition of family of dependent of deceased-employee does not change and members of the family are starving or have no source of livelihood or facing financial hardship and moved application within the reasonable period after the death of government-employee, then application shall be considered on account of no change in the family condition.  Such application cannot be thrown out by the appointing authority merely because the same has been kept pending for one or other reason. 

It shall be appropriate for the department to make provision with regard to creation of supernumerary post to make compassionate appointment to save the life of starving dependents of family of deceased-employee.  It is rightly held in the case of Hari Ram (supra) that mere pendency of application shall not forfeit the right of dependents of deceased-government employee to claim compassionate appointment.   In addition to above, I am of the view that as observed here-in-above in case family condition of dependents of deceased-employee which was existing at the time of death does not change and there is no source of livelihood, then compassionate appointment must be done even after period of three years or more.

Keeping in view the fact that the right to livelihood is fundamental right secured by Article 21 of the Constitution of India, the Government cannot act arbitrarily while making provision to consider the case with regard to compassionate appointment in case dependents of deceased-employee are facing extreme hardship or financial crunch and have no source of livelihood.  It should not forget the proposition of law propounded by Hon'ble Supreme Court that dignity and quality of life are part and parcel of Article 21 of the Constitution and when the matter is considered on the ground of right to livelihood, it does not mean as an  animal living but living in such position or circumstances which fulfills essential requirement of man's life.

In view of above, writ petition deserves to be and is hereby allowed.   A writ in the nature of certiorari is issued quashing the order dated 11/13.6.2008. A further writ in the nature of mandamus is issued directing the respondents to consider the petitioner's case again for compassionate appointment keeping in view the observation made here-in-above, expeditiously say, within a period of three months from the date of production of certified copy of this order. 

Accordingly, the writ petition is allowed.   No order as to costs.

Order Date :- 25.4.2012

Rizvi