Raja Ram vs M.C.D.
2007 Latest Caselaw 1793 Del

JUDGMENT

Hima Kohli, J.

1. The present writ petition has been filed praying inter alia for issuance of a writ of mandamus, directing the respondent/Municipal Corporation of Delhi (MCD), to give compassionate appointment to the petitioner on regular/casual basis against any Class IV post.

2. Briefly narrated, the facts of the case are that the father of the petitioner was appointed as a Mali on muster roll basis in the year 1984, and his services were regularized in the year 1990. On 25.9.2002, the father of the petitioner died while in service leaving behind his wife, a married daughter, and his son, the petitioner herein who is married, with two sons and a daughter. The petitioner made a representation to the respondent MCD on 24.10.2002 for appointment on compassionate basis but, the same was rejected by the respondent MCD on 10.11.2004 Vide letter dated 9.6.2005, the petitioner made another representation to the respondent MCD, but having received no reply to the same, the petitioner has approached this Court by filing the present petition.

3. Counsel for the petitioner submitted that after the demise of the father of the petitioner and in absence of any alternate employment in the family, the whole family is unable to cope up with the financial crises and are on verge of starvation. It was submitted that the family which needs to be supported is large as the married daughter of the deceased employee, sister of the petitioner, has been abandoned by her husband, and the petitioner is also married and has a wife and three children to support. Reliance was placed on the certificate dated 28.01.2003 issued by the Village Panchayat Development Officer to state that the financial position of the petitioner's family is in turmoil due to the sudden demise of his father.

4. It was argued that while the representation of the petitioner was rejected arbitrarily, similarly placed persons as the petitioner have been granted compassionate appointment by the respondent MCD. Reference was made to the case of one Shri. Chaman Lal who was appointed on compassionate grounds as a daily wager Mali, whose father had also died leaving behind his wife, a son, i.e. the said Shri. Chaman Lal and three daughters, one of whom one was unmarried.

5. Counsel for the petitioner also sought to draw support from the instructions issued by the Department of Personnel and Training for giving compassionate appointment to the dependants of a deceased Government servant and stated that as per the said instructions, the respondent MCD should have immediately given appointment to the petitioner so as to help him tide over the financial crisis.

6. As against the arguments advanced on behalf of the petitioner, the counsel for the respondent submitted that the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide alternative employment to his family members.

7. It was further submitted that the application of the petitioner for appointment on compassionate ground was duly considered by the Compassionate Appointment Committee and was rejected for the reasons that the deceased employee had left behind his wife and one married son living in their own house and had not left any specific liability behind.

8. Counsel for the respondent relied on Rule 5 of the Service Rules regarding appointment on compassionate grounds which deals with the eligibility criteria for grant of compassionate appointment, to state that as per the requirement of the said Rule, neither was the family indigent, nor did it deserve immediate assistance for relief from financial destitution, nor was the petitioner eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules (RRs). Reference was made to the form filled up by the petitioner to show that while his education qualification was class 4 pass, the RRs for Class IV post required an applicant to be Lower Primary School pass of a recognized Board or equivalent with one year's experience in gardening.

9. Lastly it was averred that the petitioner and his family had already received an amount of Rs. 1,71,118/- (approx.) as against Leave Encashment, GPF Contribution, GIS, Gratuity, Pension arrears and A.C.P. arrears besides a monthly sum of Rs. 2,742 being received by the family as pension, and in such circumstances, the family cannot be said to be in a state of penury.

10. I have heard the respective contentions of the counsels of both the parties and have also perused the documents placed on record.

11. In the light of the various judgments of the Supreme Court and the various High Courts, the law regarding compassionate appointments is now well settled.? The philosophy underlying the policy of compassionate appointment is to provide immediate help to the family of an employee who dies in harness by appointing one member of the family on similar or lower post. In Umesh Kumar Nagpal v. State of Haryana reported as , the Supreme Court referred to an earlier judgment in Sushma Gosain v. Union of India reported as and observed:

...As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favor of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favorable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favor of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned.

12. Thus the position of law as enunciated by the Apex Court is that appointment on compassionate ground cannot be claimed as a matter of right and such appointment cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. A claim for appointment on compassionate basis has been considered as reasonable and permissible on the basis of the sudden crisis occurring in the family of an employee who has served the state and died while in service. However the rules, regulations, administrative instructions and orders in this behalf must stand the test on the touchstone of Article 14 and 16 of the Constitution of India. Appointment on compassionate basis is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the effect of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But again such appointments on compassionate ground have to be made only in accordance with the rules, regulations or administrative instructions taking into consideration the condition of the family of the deceased. Support is further drawn from the following judgments:

(i) State of Haryana v. Rani Devi .

(ii) State of Haryana v. Ankur Gupta .

(iii) M.C.D. v. Jagdish Prasad in WP(C) No. 721/2003.

13. While giving such compassionate employment, it is also to be kept in mind that it is not unduly unfair with the rights of those other persons who are eligible to seek appointment against a post which would have been available but for the provision enabling dependents of the deceased employee to be appointed on compassionate grounds. Reliance in this regard may be placed on the judgment rendered by the Supreme Court in the case of State of Manipur v. Md. Rajaodin reported as .

14. Coming to the facts of the present case, a perusal of the minutes of the meeting of the Committee for Compassionate Appointment reflects that while rejecting the application of the petitioner seeking appointment on compassionate grounds, the factors that weighed with the Committee were that the deceased father of the petitioner had left behind only his wife and a married son, i.e., the petitioner. The daughter of the deceased employee was already married. Also, in the form filled up by the petitioner for claiming compassionate appointment, the petitioner has himself stated that the family owned a kaccha house with two bigha's land, which fact was also duly taken note of by the respondent MCD while rejecting his case for compassionate appointment.

15. Records also reflect that the petitioner does not possess the necessary qualifications as stipulated in the RRs for the post of Mali and as indicated hereinbefore, since he is only class 4 pass. It is also apparent from the minutes of the meeting of the Committee for Compassionate Appointment that the case of the said Shri. Chaman Lal, with whom the petitioner has sought to compare himself, is not identical to that of the petitioner. A perusal of the records shows that the claim of the petitioner for grant of appointment on compassionate grounds was rejected by the respondent MCD after due application of mind and in these circumstances, it is not appropriate for this Court to sit in appeal over the judgment of the competent authority in exercise of the power of judicial review vested in it under Article 226 of the Constitution of India.

16. There is force in the contention of the counsel for the respondent that the petitioner's mother having already received all the amount due to the family of the deceased father of the petitioner on account of Leave Encashment, GPF Contribution, GIS, A.C.P. arrears, pension arrears and Gratuity to which she was entitled along with the monthly pension amount, there is no such financial crisis or extreme financial difficulty, to tide over for which the petitioner needs to be appointed with the respondent MCD on compassionate grounds.? In the case of Punjab National Bank v. Ashwani Kumar Taneja , the Supreme Court has held that compassionate appointment should not be given where there is no financial hardship as the purpose and object behind the said appointment is to tide over the sudden financial crisis. While determining and deciding this aspect, the Supreme Court held that retiral benefits have to be taken into consideration and cannot be ignored.

17. It is pertinent to mention that as of date the petitioner is about 32 years of age. His plea that he has no alternative employment and has to support his wife and three children also besides his mother and a married sister who has allegedly been abandoned by her husband, is liable to be out rightly rejected, since the wife and children of the petitioner were in any case not the dependents of the deceased father of the petitioner. The mother of the petitioner is receiving monthly pension and is not a liability on the petitioner. It is also relevant to note that five years have passed since the demise of the father of the petitioner and hence the situation of providing immediate succour to the family of the deceased employee upon his death has also dissipated. At the cost of repetition, it is reiterated that Government jobs are not hereditary in nature and compassionate appointment is not a mode of employment but only a means to provide immediate relief to a family that suffers extreme financial difficulty because of the sudden demise of its earning member.

18. Keeping in view the aforesaid facts and circumstances and the position of law as discussed above, the Court finds no illegality or perversity in the recommendations of the Committee for Compassionate Appointment dated 3rd March, 2006 for interference. The writ petition is dismissed, being devoid of merits.

19. There shall be no order as to costs.