Delhi High Court
Santosh Devi vs Govt. Of Nct., Delhi And Ors on 12 March, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.1605/2013
% March 12, 2013
SANTOSH DEVI ..... Petitioner
Through: None.
versus
GOVT. OF NCT., DELHI AND ORS ..... Respondents
Through: Mr. Mukesh Sharma for
Mr. Jagdeep Sharma, Adv. for R-1 & 2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. In spite of the matter being passed over no one is present for
the petitioner. The present writ petition seeks compassionate
appointment with the respondent No.3/school.
2. No doubt the school is an aided school, however, the
Government of National Capital Territory of Delhi has stated that there is
no policy for compassionate appointment in aided schools. The petitioner
himself admits this in para 2.11 at Page 14 of the writ petition. The
petitioner has also not filed any policy entitling the petitioner to
compassionate appointment.
3. It is held by the Supreme Court in the case of State Bank of
India and Anr. Vs. Raj Kumar 2010 (3) Scale 635 that compassionate
appointment is an exception to the general rule and compassionate
appointment cannot be granted unless there is an extant policy, specifying
the qualification and vacancy in the post being available. 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 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scheme is in force and not after it is abolished/withdrawn.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
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 above since there is no prevalent policy for
grant of compassionate appointment by the respondent No.3/school, and
also in view of the stand of the Government of National Capital Territory
of Delhi showing that there is no scheme of compassionate appointment,
the present writ petition is dismissed.
VALMIKI J. MEHTA, J
MARCH 12, 2013
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