Delhi High Court
Raj Kumar vs General Manager, Northern ... on 29 April, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 3655/2012
% 29th April, 2013
RAJ KUMAR ......Petitioner
Through: Ms. Neha Gupta, Advocate.
VERSUS
GENERAL MANAGER, NORTHERN RAILWAY ...... Respondent
Through: Mr. Shankar N. Sinha, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This writ petition is filed by the petitioner Sh. Raj Kumar, son of late
Sh. Doodh Nath. Late Sh. Doodh Nath was an employee of the respondent-
Railways. Sh. Doodh Nath expired on 31.01.2011 while still in services of
Railways and the petitioner claims compassionate appointment.
2. The case as set up in the writ petition is that the petitioner's mother
was offered employment but she wants the petitioner to get employment with the
respondent. Petitioner had approached the respondent and the respondent on
15.02.2012 rejected the request of the petitioner for appointment on compassionate
WPC 3655/2012 Page 1 of 6
ground in view of the fact that the financial condition of deceased Doodh Nath's
family was not such which required compassionate appointment.
3. It could not be disputed before me that on the death of Sh. Doodh
Nath, the family received amounts totaling to `11,76,000/- as settlement
dues/retirement benefits and the petitioner's mother is also getting pension of `
6980/- per month. It is also relevant to note that the petitioner is found to be
earning ` 4000/- per month as a private employee. The Supreme Court in the case
of State Bank of India and Anr. vs. Raj Kumar 2010 (3) Scale 635 has held that
the entitlement to compassionate appointment is not a matter of right and is not a
substitute for a regular recruitment process. The Supreme Court has clarified that
compassionate appointment can only be granted if there is a prevalent scheme for
grant of compassionate employment, and not otherwise. The relevant paras of the
judgment of Supreme Court in the case of State Bank of India (supra) are paras 6
to 8 which read as under:-
"6. It is now well settled that appointment on compassionate
grounds is not a source of recruitment. On the other hand it is an
exception to the general rule that recruitment to public services
should be on the basis of merit, by an open invitation providing
equal opportunity to all eligible persons to participate in the
selection process. The dependants of employees, who die in
harness, do not have any special claim or right to employment,
except by way of the concession that may be extended by the
employer under the rules or by a separate scheme, to enable the
WPC 3655/2012 Page 2 of 6
family of the deceased to get over the sudden financial crisis. The
claim for compassionate appointment is therefore traceable only
to the scheme framed by the employer for such employment and
there is no right whatsoever outside such scheme. An
appointment under the scheme can be made only if the scheme is
in force and not after it is abolished/withdrawn. It. follows
therefore that when a scheme is abolished, any pending
application seeking appointment under the scheme will also cease
to exist, unless saved. The mere fact that an application was made
when the scheme was in force, will not by itself create a right in
favour of the applicant.
7. Normally, the three basic requirements to claim appointment
under any scheme for compassionate appointment are: (i) an
application by a dependent family member of the deceased
employee; (ii) fulfilment of the eligibility criteria prescribed under
the scheme, for compassionate appointment; and (iii) availability
of posts, for making such appointment. If a scheme provides for
automatic appointment to a specified family member, on the
death of any employee, without any of the aforesaid
requirements, it can be said that the scheme creates a right in
favour of the family member for appointment on the date of
death of the employee. In such an event the Scheme in force at
the time of death would apply. On the other hand, if a scheme
provides that on the death of an employee, a dependent family
member is entitled to appointment merely on making of an
application, whether any vacancy exists or not, and without the
need to fulfil any eligibility criteria, then the scheme creates a
right in favour of the applicant, on making the application and the
Scheme that was in force at the time when the application for
compassionate appointment was filed, will apply. But such
schemes are rare and in fact, virtually nil.
8. Normal schemes contemplate compassionate appointment on an
application by a dependent family member, subject to the applicant
fulfilling the prescribed eligibility requirements, and subject to
availability of a vacancy for making the appointment. Under many
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schemes, the applicant has only a right to be considered for
appointment against a specified quota, even if he fulfils all the
eligibility criteria; and the selection is made of the most deserving
among the several competing applicants, to the limited quota of
posts available. In all these schemes there is a need to verify the
eligibility and antecedents of the applicant or the financial capacity
of the family. There is also a need for the applicant to wait in a
queue for a vacancy to arise, or for a Selection Committee to
assess the comparative need of a large number of applicants so as
to fill a limited number of earmarked vacancies. Obviously,
therefore, there can be no immediate or automatic appointment
merely on an application. Several circumstances having a bearing
on eligibility, and financial condition, up to the date of
consideration may have to be taken into account. As none of the
applicants under the scheme has a vested right, the scheme that is
in force when the application is actually considered, and not the
scheme that was in force earlier when the application was made,
will be applicable. Further, where the earlier scheme is abolished
and the new scheme which replaces it specifically provides that all
pending applications will be considered only in terms of the new
scheme, then the new scheme alone will apply. As compassionate
appointment is a concession and not a right, the employer may
wind up the scheme or modify the scheme at any time depending
upon its policies, financial capacity and availability of posts."
(underlining added)
4. A reading of the aforesaid judgment shows that grant of
compassionate employment is not to be treated as one of the methods of public
employment and compassionate employment can only be granted in accordance
with the applicable scheme.
WPC 3655/2012 Page 4 of 6
5. In the present case, as per the scheme dated 6.1.2009, and which has
been filed as Annexure R-1 to the writ petition, it is necessary that the competent
authority should satisfy itself on the basis of the balanced and objective assessment
of the financial conditions of the family entitlement for grant of compassionate
appointment. Accordingly, the competent authority in view of the facts stated
above has taken a decision that the financial condition of the deceased family is not
such that compassionate employment should be granted.
6. Learned counsel for the petitioner sought to place reliance upon the
judgment in the case of Mumtaz Yunus Mulani (SMT) Vs. State of Maharashtra
and Others (2008) 11 SCC 384 to argue the proposition that grant of pension is not
relevant to consider the financial status of a person. In my opinion, there is no
quarrel to this proposition that pension need not be considered, however, various
paras in the said judgment have stressed upon the entitlement to compassionate
appointment for the reason that on account of certain death there is a financial
crisis in the family, and which is not so in this case. In any case, the judgment
relied upon by the petitioner does not state that the policy of the employer has to be
violated for giving compassionate employment.
7. In view of the fact that the monetary amounts which has been given
above with respect to the family of the petitioner, as also the fact that petitioner
WPC 3655/2012 Page 5 of 6
himself is earning, in my opinion, the respondent was justified in declining the
compassionate appointment.
8. In view of the above, there is no merit in the petition, which is
accordingly dismissed, leaving the parties to bear their own costs.
APRIL 29, 2013 VALMIKI J. MEHTA, J.
ib
