Delhi High Court
Ms. Manju vs Balwantray Mehta Vidya Bhawan Sr. ... on 30 July, 2013
Author: Valmiki J. Mehta
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13270/2009
% 30.07.2013
MS. MANJU ..... Petitioner
Through MR. G.D. Bhandari, Mr. Parveen K.
Nagpal, Advocates
versus
BALWANTRAY MEHTA VIDYA BHAWAN
SR. SEC. SCHOOL AND ANR. ..... Respondents
Through Ms. Bandana Shukla, Advocate for Ms.
Ruchi Sindhwani, Advocates for respondent No. 2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Petitioner, who is the wife of late Sh. Om Prakash, seeks
compassionate appointment with the respondent No. 2/ Balwantray Mehta
Vidya Bhawan Sr. Sec. School.
2. Compassionate appointment can only be granted in terms of an
applicable policy and on the aspirant satisfying the requirements of the
policy. Under certain compassionate policies, there is a quota for
appointment and subject to vacancies arising in that quota, appointment can
W.P.(C) 13270/2009 Page 1
be made. Also entitlement to compassionate appointment in certain
policies is only for a certain number of years. A reading of the writ petition
shows that there is no reference to the policy of the respondent No.2/school
or of the respondent No.3/Director of Education, what are its requirements,
how the petitioner meets the requirements, whether under the policy there is
a specific quota and whether vacancy exists in that quota for appointment of
the petitioner, and all of which aspects have to be looked into before
compassionate appointment could be given.
3. Law on the aspect of compassionate appointment is stated recently by
the Supreme Court in the case of State Bank of India and Anr. Vs. Raj
Kumar 2010 (3) Scale 635. The relevant paras of this judgment of Supreme
Court 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 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
W.P.(C) 13270/2009 Page 2
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
W.P.(C) 13270/2009 Page 3
eligibility requirements, and subject to availability of a
vacancy for making the appointment. Under many
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. In view of the aforesaid legal position and lack of necessary pleadings
I put it to the counsel for the petitioner that it would be better that the
W.P.(C) 13270/2009 Page 4
petitioner files a fresh writ petition giving the details of the policies, how the
petitioner meets the qualifications and as to whether there are vacancies in
the quota for the post to which petitioner seeks appointment, however,
counsel for the petitioner states that the case be decided as it is. I have,
therefore, no option but to dismiss the writ petition on account of the facts
that unless and until it is known what are the requirements of the
compassionate appointment, as to how the petitioner satisfies the
requirements, what are the vacant posts available in the specified quota etc,
relief as prayed for cannot be granted.
5. In view of the above, the writ petition is dismissed, leaving the parties
to bear their own costs. Though the writ petition is dismissed, in the
peculiar facts of the present case, because the Director of Education admits
that there is a policy of compassionate appointment, the petitioner will be at
liberty to make a representation to the school preferably within a period of
six weeks from today indicating as to how petitioner complies with the
requirements of the compassionate appointment policy. The school will
forward the proposal/recommendation within four weeks to the appropriate
authority of the Directorate of Education and which appropriate authority
will take a sympathetic decision on the proposal of the petitioner within a
W.P.(C) 13270/2009 Page 5
period of two months of the receipt of the same from school. The decision
of the appropriate authority will be communicated to the petitioner and her
counsel.
VALMIKI J. MEHTA, J
JULY 30, 2013
godara
W.P.(C) 13270/2009 Page 6
