Dev Priye Saini vs Govt. Of Nct Of Delhi
2011 Latest Caselaw 440 Del

                                                                  REPORTABLE


*             IN THE HIGH COURT OF DELHI AT NEW DELHI


                               W.P. (C) No.3576/2007


                                           Reserved on: January 12, 2011
                                           Date of Decision: January 25, 2011


        DEV PRIYE SAINI                            ... Petitioner
                            through Ms. K.B.Hina, Advocate with
                            Mr. Piyush Sharma, Advocate

                      versus


        GOVT. OF NCT OF DELHI                ... Respondent
                       through Mr. Rohit Madan, Advocate for
                       Mr. Aditya Madan, Advocate

        CORAM:
        HON'BLE MISS JUSTICE REKHA SHARMA

1.      Whether the reporters of local papers may be allowed to see the
        judgment? Yes
2.      To be referred to the reporter or not? Yes
3.      Whether the judgment should be reported in the „Digest‟? Yes

REKHA SHARMA, J.

The petitioner is the son of Shri N.S.Saini who was working as

Assistant Sales Tax Officer in the Sales Tax Department of

National Capital Territory (NCT) of Delhi which was a Group-B Gazetted

post. Unfortunately, while still in service Shri N.S.Saini died on

January 31, 1998, leaving behind the petitioner who was then

14 years of age, his wife Smt. Santosh Saini who was 45 years of age,

and two daughters aged 23 years and 11 years. Consequent upon the

untimely death of his father, the petitioner vide an application dated

August 28, 1998 addressed to the Commissioner, Sales Tax, applied for

WP(C) No.3576/2007 Page 1 appointment as a Lower Division Clerk (LDC) on compassionate basis.

The Commissioner, Sales Tax forwarded his request to the Secretary

(Services), Government of NCT of Delhi for consideration. Since the

petitioner was a minor at the time he applied for such appointment,

the office of the Department of Services, Government of NCT of Delhi

vide letter dated January 21, 1999 informed the Sales Tax Department

with a copy endorsed to the petitioner that his request could not be

considered and that any further action could be taken only after

March 23, 2002, as that was the date when he would have attained the

age of majority. In view of this communication, the petitioner on

attaining the age of majority wrote to the Deputy Secretary (Services),

Government of NCT of Delhi to take up his case of appointment on

compassionate ground. The Department of Services through a

Screening Committee did consider his case along with others in its

meeting held on December 19, 2003/January 12, 2004 but did not

recommend him for appointment due to shortage of vacancies and

also on the basis of relative merit. The petitioner was informed about

the said decision of the Screening Committee vide letter dated

February 17, 2005 and was also informed that his case would be

placed in the next meeting of the Screening Committee. His case was

again considered by the Screening Committee in its meeting held on

September 26, 2006 but it again did not recommend him for

compassionate appointment citing the same reason of shortage of

vacancies and want of relative merit. The decision so taken was

communicated to the petitioner on November 15, 2006.

WP(C) No.3576/2007 Page 2 It is this communication which has brought the petitioner to this

Court, seeking quashing of order dated November 15, 2006 and

praying for a writ of mandamus directing the respondent to reconsider

his case with relative merit of other applicants.

The question is, should this Court issue a direction in the nature

of mandamus to the respondent to consider the case of the petitioner

afresh when already he has been considered twice by the Screening

Committee and has been found not fit for such appointment on

account of shortage of vacancies and on the basis of relative merit?

The petitioner has relied upon the Office Memorandum issued by

the Ministry of Personnel, Public Grievances and Pension (Department

of Personnel and Training) dated October 09, 1998 and it is on the

basis of this Memorandum that he has sought compassionate

appointment. The object of the "Scheme for Compassionate

Appointment" as laid down in the Memorandum 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." It also lays down that, "such appointments can only be

made to Group „C‟ or Group „D‟ posts against the direct recruitment

quota up to a maximum of 5% of vacancies falling under the said

quota, if the family of the deceased Government servant is found to be

indigent and deserving immediate assistance for relief from financial

destitution, and the person applying for compassionate appointment is

WP(C) No.3576/2007 Page 3 eligible and suitable for the post in all respects under the provision of

the relevant Recruitment Rules." It further provides that, "upper age

limit can be relaxed wherever can be found to be necessary but the

lower age limit, in no case, shall be relaxed below 18 years of age ."

It is evident from the "Scheme for Compassionate Appointment"

that the whole purpose behind providing such an appointment to one

of the family members of a Government employee who dies in harness,

is to help the family tide over the financial crisis in which it suddenly

finds itself on account of the death of the only bread-earner. The

petitioner soon after the death of his father did apply for appointment

to the post of LDC, but since he was only 14 years of age, he was

ineligible in terms of the Memorandum dated October 09, 1998

wherein, as noticed above, it is laid down that in no case, the lower

age limit shall be relaxed below 18 years. Hence, he was informed

that his request could only be considered on his attaining the age of

majority. Notwithstanding the fact that in view of the age of the

petitioner, there was no prospect of his getting immediate

employment, the family preferred to wait for him to come of age rather

than the eldest daughter applying for the job who suffered from no

such disability of age. When asked as to why the daughter did not

apply, it was sought to be justified on the ground that she was of

marriageable age and in the event of her marriage, she would have

ceased to be of any assistance to the family monetarily. The

explanation so rendered gives rise to the presumption that the family

was not in dire need of financial assistance. This is fortified by the fact

that the family received ` 6,13,969/- as terminal benefits and

WP(C) No.3576/2007 Page 4 ` 3750/- per month was fixed as family pension. What does one make

out from all this? Does it not give a feeling that the family was more

keen in securing a job for the son than to rehabilitate itself, for if it was

really reduced to a state of penury consequent upon the death of the

only earning member, it would not have waited for the son to turn 18.

At least, this is how I look at it. Ordinarily, in a situation like this when

the survival of a family is at stake, whoever is eligible, be it a daughter

or a son or even a wife, anyone of them will seek compassionate

appointment and all other concerns including the marriage of a

daughter become secondary. As a matter of fact, I feel, had the eldest

daughter of the family applied for the job and in the event of her

getting the same, it would have enhanced her prospects of marriage

and at the same time, she would have also rendered help to the family.

But the family instead of exercising this option chose to wait for the

petitioner to attain the age of majority as if he had a vested right to

compassionate appointment and could lay his claim to the same at any

point of time. The father of the petitioner had died 13 years ago. The

petitioner is now more than 27 years of age. He is still chasing a job to

which he has no right. It has been time and again held by the Courts,

particularly, the Apex Court that compassionate appointment cannot

be claimed as of right. It is subject to availability of vacancies in the

quota prescribed for such appointments and is also subject to the

financial condition of the family of an employee who dies in harness.

The case of the petitioner was considered not once, not twice but

thrice, but each time he was not found fit enough to be recommended.

On the first occasion, he was not eligible for consideration, and on the

WP(C) No.3576/2007 Page 5 other two occasions, he was not found fit enough to be recommended

on the basis of relative merit when compared with cases of similar

nature and also on account of the cap of 5% quota for such

appointments.

For what has been noticed above, I find no merit in the

writ-petition. The same is dismissed.

REKHA SHARMA, J.

JANUARY 25, 2011
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