Delhi High Court
Smt. Kamla vs Union Of India & Ors. on 22 October, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 6618/2013
% 22nd October, 2013
SMT. KAMLA ......Petitioner
Through: Ms. Geeta Sharma and Ms. Venessa
Singh, Advocates.
VERSUS
UNION OF INDIA & ORS. ...... Respondents
Through: Ms. Sweety Manchanda, CGSC for
R-1.
Mr. Piyush Gaur and Mr. Arun
Bhardwaj, Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition, petitioner seeks compassionate
employment on account of death of her husband who died in harness on
19.7.2012.
2. It is now settled law that compassionate employment is not a
source of recruitment. Compassionate appointment can only be in terms of
an applicable policy. The following important observations have been made
by the Supreme Court recently in the case of State Bank of India and Anr.
WPC 6618/2013 Page 1 of 5
Vs. Raj Kumar 2010 (3) Scale 635 with respect to compassionate
employment.
"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not after it is abolished/withdrawn.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
WPC 6618/2013 Page 2 of 5
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
WPC 6618/2013 Page 3 of 5
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)
3. The facts of the present case shows that the husband of the
petitioner was subjected to a departmental punishment. That departmental
punishment became final and the petitioner did not in any manner seek
setting aside of that punishment. Though the petitioner claims that her
husband was exonerated in the criminal case, however, admittedly in that
case of rash and negligent driving petitioner's husband was convicted by
imposition of compensation.
4. No doubt a prayer for consideration of representation is an
innocuous prayer, however, in law consideration of representation can only
be on a legal basis. In the present case, no policy is pleaded of how there
exists a right in the petitioner to claim compassionate appointment and in
what manner the elements of the compassionate appointment policy are
satisfied by the petitioner so as to get compassionate appointment.
WPC 6618/2013 Page 4 of 5
5. In view of the above, there is no merit in the writ petition and
the same is therefore dismissed, leaving the parties to bear their own costs.
OCTOBER 22, 2013 VALMIKI J. MEHTA, J.
ib
