Uoi & Ors. vs Smt.Sudha Gupta
2011 Latest Caselaw 936 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                W.P.(C) No.6421/2007

%                          Date of Decision: 17.02.2011

UOI & Ors.                                                  ...... Petitioners

                       Through     Mr.A.K.Bhardwaj & Ms. Jagrati Singh,
                                   Advocates

                                      Versus

Smt. Sudha Gupta                                           ...... Respondent

                       Through     Mr. Vijay Singh Charak, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

1.    Whether reporters of Local papers may be                   YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                     NO
3.    Whether the judgment should be reported in                 NO
      the Digest?


ANIL KUMAR, J.

*

CM No. 22036/2010

1. The above noted writ petition was disposed of by this Court by

order dated 26th March, 2009. This is an application by the petitioners

seeking permission to delete the name of the respondent from the wait

list of the candidates for compassionate appointment.

2. Issue notice to the respondent. Mr. Vijay Singh Charak, Advocate

appears for the respondent and accepts notice on her behalf.

3. The case of the applicants is that the husband of the respondent

had died on 24th January, 2002, who was employed in the Govt. of

India Press, Faridabad. The respondent/non-applicant had sought

appointment on the compassionate ground. Since she was not given

such appointment for almost three years, she preferred an original

application before the Central Administrative Tribunal, Principal Bench

in year 2005.

4. While contesting the pleas of the respondent about the

compassionate appointment, it was contended that the respondent shall

be considered on occurrence of vacancy under 5% quota and

appointment letter shall be issued, however, the process of appointment

shall be subject to OM dated 5th May, 2003 of DOP & T. While

disposing of the application of the respondent, directions were also

given to the petitioners to refer the case of the respondent to other

Ministries/Departments for circulation for compassionate appointment

in case the vacancies were not available in the Govt. of India Press.

5. Learned counsel for the applicants had contended that these

directions were given on the basis of DOP & T OM which was issued in

1998 and the directions to refer the cases to other

Ministries/Departments were withdrawn in 2001 and the case of the

respondent is not to be governed as per DOP & T OM dated 22nd June,

2001.

6. Against the order of the Tribunal dated 28th November, 2005,

above noted writ petition was filed by the petitioners, which was

disposed of by this Court by order dated 26th March, 2009 whereby the

directions of circulation of request to other Ministries/Departments

were set aside. However, it was reiterated that the petitioners shall be

bound by the assurance which had been given to the respondent to

consider her case on occurrence of vacancies. While directing the

petitioners that they will be bound by the assurance given to the

respondent on occurrence of vacancies, it was not directed that

pursuant to OM dated 5th May, 2003 her name will be liable to be

deleted from the list of wait listed candidates for compassionate

appointment after a particular time.

7. The petitioners/applicants have now contended that the

compassionate appointment committee in its meeting held on 30th

March, 2009 pursuant to OM dated 5th May, 2003 had decided that

since the vacancies in 5% quota had not occurred for many years and

as on 5th May, 2003 the number of wait listed candidates had risen to

308, it will be appropriate to delete the name of such candidates who

were continuing in the list for more than three years. Consequent to the

alleged decision of 30th March, 2009, the permission has been sought to

delete the name of the respondent from the wait listed candidates, who

was included as per her application dated 16th July, 2002. It was

asserted that her name is continuing for more than six years.

8. The application of the petitioners herein is opposed by the learned

counsel for the respondent contending, inter alia, that on 26th March,

2009 while disposing of the writ petition, it had not been observed by

this Hon'ble High Court that pursuant to OM dated 5th May, 2003, the

name of the respondent would be liable to be deleted after more than

three years as on that date also pursuant to the said OM, three years

had already expired from the date of her application. The learned

counsel for the respondent has contended that the order dated 26th

March, 2009 has become final and the tenor of the order could not be

changed by the appointment committee by laying down another criteria

to delete the names of those candidates who had been on the wait list

for more than three years. The order dated 26th March, 2009 has not

been challenged by the petitioners and by an executive order, the order

passed by this Court and the assurance given by the petitioners to the

respondent cannot be negated or circumvented in any manner. In the

circumstances, the learned counsel has contended that the respondent

is being harassed and put to unnecessary expenses and litigation

without granting any relief to the respondent contrary to the assurance

given by the petitioners, on account of which the writ petition was

disposed of by order dated 26th March, 2009.

9. We have heard the learned counsel for the parties. The order

dated 26th March, 2009 is categorical whereby the directions for

circulation of the request of the respondent to other Ministries were set

aside, however, it was reiterated that the petitioners shall remain bound

by the assurance given to the respondent that her case will be

considered under 5% quota on occurrence of vacancy. Though it is

stated that the process will be subject to DOP & T OM dated 5th May,

2003, however, the said OM does not stipulate that the candidates in

the wait list shall be removed in case they do not get compassionate

appointment within three years. In any case, while this Court disposed

of the writ petition on 26th March, 2009, it was not held that the

petitioners shall be entitled to delete the name of the respondent on

completion of three years after the date of her application. In any case,

even if the name of the respondent is to be deleted from the wait listed

candidates seeking compassionate appointment, in the facts and

circumstances, it ought to be after three years of 26th March, 2009

when the petition was disposed of and the direction to circulate request

of the respondent to other Ministries/Departments was set aside.

However, it was reiterated that the petitioners shall be bound by their

assurance.

10. The decision of the committee, in any case, is after the decision

was taken by this Court on 26th March, 2009 and by a subsequent

decision by the officials of the petitioners, the tenor of the order dated

26th March, 2009 could neither be diluted nor negated in any manner.

In any case if pursuant to the OM of 2003, the application of the

respondent of 2002 was to be removed from the list of wait listed

candidates, the petitioners ought to have brought this to the knowledge

of the Court and should have contended that the petitioners are not

bound by their assurance as in terms of relevant order her name is

liable to be deleted from the wait list.

11. In the circumstances, the application is misconceived and the

petitioners are not entitled to delete the name of the respondent from

the list of wait listed candidates for appointment on compassionate

ground.

12. Considering the facts and circumstances, the application is

dismissed with a cost of Rs.5,000/- payable to the respondent. Cost be

paid to the respondent within two weeks.

ANIL KUMAR, J.

February 17, 2011. VEENA BIRBAL, J.

'rs'