Smt. Prema Devi And Anr. vs Govt. Of N.C.T. Of Delhi And Anr.
2013 Latest Caselaw 4726 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No.2245/2010

%                                                    10th October, 2013

SMT. PREMA DEVI AND ANR.                                  ..... Petitioners
                  Through:               Mr. D.P. Chaturvedi, Advocate.


                          Versus

GOVT. OF N.C.T. OF DELHI AND ANR.              ...Respondents

Through: Mr. Vinay Sabharwal, Advocate 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. This writ petition is filed by two petitioners. Petitioner no.1 is

the widow of late Sh. Bindeshwari Prasad and petitioner no.2 is the son of

late Sh. Bindeshwari Prasad. Compassionate appointment is claimed on

account of late Sh. Bindeshwari Prasad dying in harness on 14.10.2004.

Late Sh. Bindeshwari Prasad was 54 years old when he expired.

2. An application was made on behalf of the petitioners on

28.12.2004 for compassionate appointment. When the petitioners did not

receive any reply, ultimately a legal notice dated 28.9.2007 was sent. The

respondent no.2/employer is said to have written a letter dated 9.3.2009 to

the respondent no.1/Govt. of NCT of Delhi that petitioner no.2 cannot be

considered for compassionate appointment as there is no vacancy available

in the appropriate cadre in the 5% quota available for compassionate

appointment cases.

3. When this writ petition came up for hearing on 24.7.2013

considering that compassionate appointment scheme itself was not on record

and as to how the petitioners satisfy the requirements of the scheme, the

following order was passed:-

"1. By this petition, petitioners seek compassionate appointment. Entitlement to compassionate appointment can only be in terms of a scheme.

2. Counsel for the petitioners states that there are no averments in the writ petition of which is the applicable scheme or rules and how in December, 2004 when the application was filed, those requirements of the scheme are complied with by the petitioners. In fact, in my opinion, even the respondent No.2 is equally negligent in not stating as to what was the scheme or rule as applicable in December, 2004 with respect to compassionate appointment and how petitioners cannot get appointment under that particular compassionate appointment scheme or rule.

3. Let the petitioners now file an additional affidavit alongwith scheme as was prevalent in December, 2004 and as to how the petitioners satisfy the requirements of the scheme. Respondent No.2 will then file reply to the additional affidavit giving its defence with respect to the stand raised in the additional affidavit. Additional affidavit be now filed within four weeks. Reply thereto be filed within two weeks thereafter.

4. List on 10th October, 2013."

4. Pursuant to the order dated 24.7.2013, petitioners have filed an

additional affidavit on 19.8.2013 and which was responded to on behalf of

respondent no.2 by its supplementary affidavit dated 8.10.2013. Petitioner

has not filed the scheme for compassionate appointment, however, the

respondent no.2 has filed the scheme for compassionate appointment as

Annexure-I to its supplementary affidavit. The salient aspects of the scheme

are that object of compassionate scheme is to avoid penury and financial

destitution to the family of the deceased employee. Appointments are meant

to be made against regular vacancies and subject to a maximum of 5%

vacancies in the relevant post. Para 7(c) categorically states that the ceiling

of 5% for making compassionate appointment should not be circumvented

by making appointments of casual/daily/ad hoc/contract basis against regular

vacancies. A specific form is provided which requires to be filled in to

ensure that financial condition of the family is such that the family has only

an income limit of `3,000/- per month. In order to determine the income

limit of `3,000/- all the assets and liabilities of the family seeking

compassionate appointment have to be seen. I may note that there is no

clarity in the scheme as to whether entitlement to compassionate

appointment will continue only for a limited number of years after death of

the employee dying in harness and will not continue for an indeterminable

period of time. There is, of course, an indication of indeterminable

continuation as per para 16(c) which talks of reviewing every three years the

financial condition.

5. On behalf of petitioner, reliance is placed upon the judgment of

the Supreme Court in the case of Bhawani Prasad Sonkar Vs. Union of

India and Ors. (2011) 4 SCC 209 to argue that petitioners complied with the

requirements as stated in para 20 of this judgment and therefore petitioner

no.2 is entitled for compassionate appointment. Para 20 in the case of

Bhawani Prasad Sonkar (supra) reads as under:-

"20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:

(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.

(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.

(iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the bread winner while in service. therefore, compassionate employment cannot be granted as a

matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.

(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee, viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts."

6. The para in the case of Bhawani Prasad Sonkar (supra) is

relevant however it needs to be stated that an issue of compassionate

appointment has necessarily to be only as per the particular scheme of the

employer and which schemes of different employers can vary. This is

clarified by the Supreme Court in sub para (i) of the aforesaid para 20 where

it is stated that request has to be considered strictly in accordance with the

governing scheme and appointment cannot be made de hors the scheme.

7. In the present case, the issue really boils down to whether there

were vacancies available in the 5% quota for petitioner no.2 to seek

compassionate appointment, and whether there were more deserving persons

in the queue higher to the petitioner no.2 for seeking compassionate

appointment. Alongwith the supplementary affidavit, many documents have

been filed which run from internal pages 25 to 89 of this supplementary

affidavit. These documents show that respondent no.2 has proceeded very

systematically with respect to what would be the 5% quota, what are the

number of persons available for the 5% quota to be filled in, who were

higher in priority and who were more deserving etc etc. Some of the

documents which are relevant include the minutes of meeting of the

compassionate appointment dated 17.4.2006 and which gave compassionate

appointment to one Smt. Piyush Sharma by finding the candidate most

deserving and following is the relevant portion of those minutes of meeting:-

"At present the following 06 cases are available for consideration of the Screening Committee. The detailed statement is annexed as Annexure by explaining the circumstances of the individual: S. No. Name of the dependent of the deceased employee & Father name with Date of Death (S/Shri)

1. Kumari Meera Yadav (married) D/o Late Amrit Lal Yadav D.O.D. 11.7.2004 Terminal benefits Received `10,04,773/-.

2. Harcharan Singh (married) s/o Late Amar Singh D.O.D.-10.9.2004 Terminal benefits Received `10,35,697/-

3. Raj Kumar s/o Late Bindeshwar Parshad D.O.D.-14.10.2004 Terminal benefits Received `3,84,340/-

4. Sunil Kumar (married) s/o Late Prabhu Ram D.O.D.-28.2.2005 Terminal benefits Received `9,56,816/-

5. Rakesh Kumar (married) S/o Late Om Parkash D.O.D.-16.5.2005 Terminal benefits Received `4,17,866/-

6. Smt. Piyush Sharma W/o Late Arun Kumar Sharma D.O.D.-19.2.2006

Terminal benefits Received `3,31,149/-

Family Pension, Death pension & Death Gratuity are yet to be finalized by Pension Trust.

Verification of Education qualification of Smt. Piyush Sharma W/o Late Arun Kumar Sharma is being done.

The cases are placed before the Screening Committee for consideration. Submitted please.

DEALING ASSTT."

8. Therefore, considering the intent of the scheme and the fact that

there was a more deserving person appointment was accordingly given to the

said Smt. Piyush Sharma. It may be noted that the monetary emoluments

which have been stated with respect to Smt. Piyush Sharma were

`3,31,149/- as compared to the monetary benefits received by the petitioners

which were `3,84,340/-. No doubt, father of the petitioner no.2 expired

earlier on 14.10.2004, however, a reference to the scheme shows that there is

a discretion left with the committee to decide the most deserving candidate

and the date of death is not the only criteria for deciding priority for

compassionate appointment.

9. The other documents which are filed by the respondent No.2

show that meticulously a date wise list has been mentioned of persons who

were employed on causal/work charged basis in the absence of regular

vacancies and as and when regular vacancies arose such persons were

confirmed in those posts. In fact, as on the date of the arguments what is the

pending list of the applicants seeking compassionate appointment has been

filed and petitioner no.2 is shown at serial no.8 in the list and effectively

no.3 for the post of AG-III and for which post the petitioner no.2 is an

aspirant.

10. Therefore, the net result of the above is that the petitioner no.2

would be considered as per the scheme in due course of time when persons

who are prior to him in the list would get appointments. At present, two

persons are above the petitioner no.2 and therefore on their cases for

compassionate appointments being considered by giving them employments,

respondent no.2 in accordance with its extant scheme for compassionate

appointment will consider the case of the petitioner no.2.

11. I may state that counsel for the respondent no.2 argued that

there is no bar in the respondent no.2 in changing the scheme for

compassionate appointment as long as it is in accordance with law and

which argument was made to contend that it is not as if the scheme of

compassionate appointment which was framed by the erstwhile DVB way

back in the year 1999 can never be changed. I think the submission made on

behalf of respondent no.2 is correct and the tripartite agreement dated

28.10.2000 entered among the DVB, Government of NCT of Delhi and the

Committee of Workers cannot be read to mean that if the financial

conditions of the respondent no.2 are such that there are necessary

amendments which are required in the compassionate appointment scheme,

the same cannot be done.

12. In view of the above, the writ petition is dismissed with the

observation that whenever the priority of the petitioner no.2 will come in

accordance with an extant scheme of compassionate appointment, and which

would be after persons who have more priority under the scheme and are

placed higher to the petitioner no.2 are given appointments, at that stage,

respondent no.2 will consider the application of the petitioner no.2 for

compassionate appointment in accordance with its applicable scheme.

13. Writ petition is therefore dismissed subject to the observations

made above of entitlement of consideration of the petitioner no.2 in due

course. Parties are left to bear their own costs.

OCTOBER 10, 2013                                VALMIKI J. MEHTA, J.
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