Maheshwari Devi Joshi vs Delhi Vidyut Board
1998 Latest Caselaw 895 Del

JUDGMENT

K. Ramamoorthy, J.

1. Late Ram Lal Joshi, the husband of the first petitioner and father of the second petitioner, was in the service of the respondent. On the 5th of June, 1991, Ram Lal Joshi died. He had left behind him his widow, three sons and one daughter. The eldest son, Inder Mohan Joshi, was married and was living separately at the time of his father's death. The second son, Subhas Chand Joshi, lived with the family only for a month after the death of the father. He started living with his elder brother separately and later on he got married. The third son, the second petitioner, Sunil Joshi, was 17 years old at the time of his father's death.

2. The case of the petitioners is that the second petitioner alone is to support the first petitioner and the other two sons do not take care of the first petitioner, and therefore, the respondent should consider the case of the second respondent for appointment on compassionate grounds.

3. In the counter-affidavit in paragraph 1, it is stated: -

"That the present writ petition filed by the petitioner is absolutely misconceived and without any merits and the same is liable to be dismissed at the threshold. It is submitted that the application of the petitioner for appointment on compassionate ground was considered by the Screening Committee on 18.6.1996 and was rejected in view of the appointment of two brothers of the petitioner being already employed in DVB. It is settled law that direction of appointment on compassionate ground cannot be given dehors the provisions or statutory regulations or instructions governing such appointments. In the present case, as per Clause 5 of the policy of 1989, for appointment on compassionate ground the petitioner is not entitled for any such appointment as his two brothers are already employed in DVB. The respondent has acted strictly in accordance with the law. The writ petition filed by the petitioner is without any merits and the same is liable to be dismissed with costs."

4. It is stated in the counter-affidavit that the two elder brothers of the second petitioner were employed with the respondent and, therefore, it is not open to the petitioners to claim appointment on compassionate ground. It is stated that the claim of the petitioners is not sustainable.

5. The learned counsel for the petitioner, Mr. P.L.Sebastian, submitted that the two elder sons of the first petitioner, though working in the respondent, are not supporting the family of the first petitioner. Therefore, the second petitioner is entitled to claim appointment on compassionate grounds.

6. The learned counsel for the respondent, Mr. B.C.Pandey, referred to paragraph 4 of the policy and submitted that as per the guide-lines mentioned in the policy, the petitioners cannot claim any compassionate appointment. The relevant part of the policy reads as under:-

"We have been following the practice that appointment on compassionate ground will not be given to the dependents of the deceased employee if any member of his family is already in regular service. For this purpose, we have not made any distinctions whether the dependent is employed in the undertaking or elsewhere or whether the dependents live with the family of her deceased or separately or whether the son of the widow is her step-son or her own.

Therefore, regular employment of any family member of the deceased officer/employee was considered a bar for grant of appointment on compassionate ground to either the widow or any other member of the family of the deceased. This criterion was more or less covered by the instructions of the Government of India laying down that family in immediate need of assistance when there is no other earning member in the family, is to he pro-vided employment assistance.

7. The learned counsel for the respondent, Mr. H.C.Pandey, referred to the judgment of the Supreme Court in "State of H.P. & Another Vs. Jafli Devi (SMT)", , wherein the Supreme Court held:-

"1. Special leave granted.

2. This appeal arises out of a writ petition (CWP No. 446 of 1995) filed by the respondent in the High Court of Himachal Pradesh. In the said writ petition the case of the respondent was that her husband Budhi Singh was employed in the office of Director, Fisheries Department, Government of Himachal Pradesh, and that he had died in harness on 12-1-1993. The respondent had applied for appointment of her son Harbans Lal on compassionate grounds. The said application of the respondent was rejected by order dated 31-3-1994 passed by the Director of Fisheries on the ground that one of the sons of the deceased employee was already in government service and another son could not he given appointment on compassionate grounds. The respondent has however, told that if she was herself interested in government service the department could consider her request. By the impugned judgment dated l6-5-1996 the High Court has allowed the said writ petition of the respondent and has set aside the order dated 31-3-1994 passed by the Director of Fisheries and has directed the appellants to reconsider the case of Harbans Lal, the son of the respondent, for appointment on compassionate grounds.

3. The learned counsel for the appellants has invited our attention to the Office Memorandum dated 18-1-1990 issued by the Government of Himachal Pradesh, Department of Personnel [AP-II] on the subject of appointment of sons/daughters/near relations of a government servant who dies in harness, leaving his family in immediate need of assistance. In para 5(c) of the said Office Memorandum relation to eligibility for such appointment, it has been stated:

"5. (c) Eligibility--In all cases where one or more members of the family are already in government service or in employment of Autonomous Bodies/Boards/Corporations etc., of the State/Central Government, employment assistance should not under any circumstances be provided to the second or third member of the family. In cases, however, where the widow of the deceased government servant represents or claims that her employed sons/daughters are not supporting her, the request of employment assistance should be considered only in respect of the widow. Even for allowing compassionate appointment to the widow in such cases the

opinion of the Department of Personnel and Finance Department should specifically be sought and the matter finally decided by the Council of Minsters."

4. The submission of the learned counsel is that in view of the said condition laid down in the policy framed by the State Government regarding giving appointment on compassionate grounds, Harbans Lal, the second son of the respondent, could not be given appointment in view of the fact that another son of the respondent was already in government service. It is urged that the High Court was in error in quashing the order dated 31-3-1994 passed by the Director of Fisheries, which was in consonance with the aforesaid policy contained in the Office Memorandum and in directing that the case of Harbans Lal for appointment on compassionate grounds be reconsidered. We find considerable force in this submission. In LIC v. Asha Ramchandra Ambekar, , this Court has laid down that the High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration and the Court should ensure to find out whether a particular ease in which sympathetic considerations are to be weighed falls within the scope of law. In that case it was held that direction for appointment on compassionate grounds could not be given de-hors the provisions or statutory regulations or instructions governing such appointments.

5. In the present case the High Court appears to have been influenced by sympathetic considerations and hardship of the respondent to make a departure from the policy laid down by the Government in the Office memorandum dated 18-1-1990. Under the said policy Harbans Lal, the second son of the respondent could not be given appointment on compassionate grounds since another son of the deceased employee was already in government service. Having regard to the said policy the application of the respondent seeking appointment for Harbans Lal had been rightly rejected by the Director of Fisheries by his order dated 31-3-1994. The High Court was in error in setting aside the said order passed by the Director of Fisheries and directing the appellants to reconsider the case of Harbans Lal for appointment on compassionate grounds.

6. The appeal is, therefore, allowed, the impugned judgment of the High Court is set aside and the writ petition filed by the respondent is dismissed. No order as to costs.

8. The claim of the petitioners that as the two elder sons are married and are living separately, though working in the respondent, the second petitioner is entitled for consideration for compassionate appoint is not at all tenable. The fact that the elder sons are not supporting the first petitioner is not at all a relevant consideration for the purpose of appointing the second petitioner on compassionate grounds. The Supreme Court had clearly laid down that the appointment on compassionate grounds should be on real need. I do not find any substance in the claim of the petitioners. Accordingly, the writ petition stands dismissed.

9. There shall be no order as to costs.