Delhi High Court
Union Of India And Ors. vs Umesh Kumar on 22 February, 2023
Neutral Citation Number: 2023/DHC/001254
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: February 22, 2023
+ W.P.(C) 32/2018
UNION OF INDIA AND ORS.
..... Petitioners
Through: Mr. Jaswinder Singh, Adv.
versus
UMESH KUMAR
..... Respondent
Through: Ms. Rhea Verma and
Mr. Rajul Jain, Advs.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
JUDGMENT
V. KAMESWAR RAO, J
1. The challenge in this writ petition filed by the petitioners
Union of India and Ors. is to the impugned orders dated May 23,
2017 and August 21, 2017 passed in OA 367/2017 and in RA
186/2017 by the Central Administrative, Principal Bench, New
Delhi ('Tribunal', for short).
2. Vide order dated May 23, 2017, the Tribunal has allowed
the Original Application filed by the respondent and directed the
petitioners herein to act on the recommendations made by the
Board of Officers in September 2009 and grant compassionate
appointment to the respondent against the post of Safaiwala /
Mazdoor / Chowkidar within three months.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.02.2023
17:48:01
Neutral Citation Number: 2023/DHC/001254
3. Vide order dated August 21, 2017, the Tribunal dismissed
the Review Application filed by the petitioners herein.
4. The claim of the respondent before the Tribunal was for
grant of compassionate appointment which was rejected by the
petitioners vide order dated August 29, 2012.
5. The facts as noted from the record are, the respondent is
the son of Late Bishan Lal, Safaiwala, who died on February 26,
2008 while in service of petitioner No. 4. The request of the
respondent was considered by the Board of Officers as constituted
by the respondent No.3. The Board of Officers in the proceedings
held in September, 2009 recommended the grant of compassionate
appointment to the respondent.
6. Suffice to state, the recommendations state that the
respondent is suitable for compassionate appointment in Group-D
for the post of Safaiwala.
7. It is noted that the petitioners vide their letter dated March
7, 2011 informed the respondent that his name is being considered
for compassionate appointment for the post of Safaiwala /
Chowkidar and sought his willingness to any of the two posts. The
said letter also contained a table which indicated that there were
five vacant posts of Safaiwala. The respondent submitted his
willingness.
8. The grievance of the respondent before the Tribunal was
that instead of acting on the specific recommendations of the
Board of Officers to grant compassionate appointment on the post
of Mazdoor / Safaiwala / Chowkidar, the petitioners vide its
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.02.2023
17:48:01
Neutral Citation Number: 2023/DHC/001254
communication dated April 28, 2012 has rejected the claim of the
respondent for compassionate appointment and also informed that
his case will not be considered again for compassionate
appointment during the next year.
9. The case of the petitioners before the Tribunal was that the
deceased official's family consisted of his widow, three sons,
including the respondent and a daughter. The respondent is
already married and his family is not in penurious condition as
assessed by the Screening Committee / Board of Officers.
10. It was further stated that his case has been considered by
the Screening Committee at the Command Headquarters along
with other cases. The respondent secured 66 marks viz-a-viz
parameters prescribed for determination of eligibility for
compassionate appointments in terms of indigent condition of the
family. The cut-off marks of the last selected candidate was 78 and
hence he has not been granted the appointment on compassionate
grounds. Reference in this regard has been made to the
instructions of the Department of Personnel and Training dated
May 5, 2003 wherein it is stated that the maximum time a person's
name can be kept for consideration, for offering compassionate
appointment will be three years subject to the condition that the
prescribed committee has reviewed and certified the penurious
condition of the applicant at the end of first and second year. After
three years, if compassionate appointment is not possible to be
offered to the applicant, his case will be finally closed and will not
be considered again.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.02.2023
17:48:01
Neutral Citation Number: 2023/DHC/001254
11. The stand of the petitioners was also that the offering of
appointment on compassionate ground as a matter of right
irrespective of the financial condition of the family of the deceased
or medically retired Government servant is legally impermissible
and also, cannot be granted after a lapse of reasonable period and it
is not a vested right which can be exercised at any time in future.
12. It was also stated that the stand of the petitioners before the
Tribunal is, compassionate appointment is meant for providing
immediate succor to the indigent family. Whereas in the case in
hand, respondent's father died nine years back and it is too late in
the day to grant, such an appointment.
13. The Tribunal while allowing the OA has in paragraphs 8 to
12 of the impugned Judgment has held as under:
"8. The factum of recommendation of the candidature of
the applicant for compassionate appointment by the
Board of Officers in September 2009, has not been denied
by the respondents. The Board of Officers had clearly
recommended the appointment of the applicant against
one of 5 vacant posts of Mazdoor/ Safaiwala/ Chowkidar.
9. During the course of hearing, in reply to a query put by
the Tribunal, Mr. Singh, learned counsel for respondents
informed that the appointing authority in respect of
compassionate appointment to Group „D‟ post is Chief
Engineer Bareilly Zone (respondent No.2). He further
confirmed that only one Board of Officers is constituted
for the Zone to consider such cases.
10. The O.M. of DoPT dated 05.05.2003, cited by the
respondents in the impugned Annexure AA letter dated
29.08.2012, wherein time limit of 3 years was prescribed
for considering the cases for compassionate appointment,
has since been withdrawn by the DoPT vide O.M.
F.No.14014/3/2011-Estt. (D) dated 26.07.2012. The
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.02.2023
17:48:01
Neutral Citation Number: 2023/DHC/001254
relevant portion of the same is extracted below:-
"3. Subsequently vide this Department‟s O.M.
No.1404/19/2002-Estt. 5th May, 2003 a time limit of
three years time was prescribed for considering cases
of compassionate appointment. Keeping in view the
Hon‟ble High Court Allahabad Judgment dated
07.05.2010 in Civil Misc. Writ Petition No.13102 of
2010, the issue has been re-examined
in consultation with Ministry of Law. It has been
decided to withdraw the instructions contained in the
O.M. dated 05.05.2003.
4. The cases of compassionate appointment may be
regulated in terms of instructions issued vide O.M.
dated 09.10.1998 as amended from time to time. The
onus of examining the penurious condition of the
dependent family will rest with the authority making
compassionate appointment."
11. In view of the ibid O.M. dated 26.07.2012 of DoPT,
there is no impediment in the way of considering the
applicant‟s case for compassionate appointment even at
this stage. As observed earlier in paragraph (11) above,
the applicant‟s case for compassionate appointment was
specifically recommended by the Board of Officers in
September 2009 and at that time vacancies in the post of
Mazdoor / Safaiwala / Chowkidar were available. The
respondents have miserably failed in explaining as to
why the recommendations of the Board of Officers, qua
the applicant, have not been acted upon. Needless to
mention that the indigent condition of the family of the
applicant was acknowledged and taken note of by the
Board of Officers while recommending his appointment
on compassionate grounds. Hence, it was not proper on
the part of the respondents to subject the case of the
applicant again and again, in the subsequent years, for
fresh scrutiny and consideration by the Board of Officers
/ Screening Committee.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.02.2023
17:48:01
Neutral Citation Number: 2023/DHC/001254
12. In the conspectus of discussions in the foregoing
paragraphs, the O.A. is allowed. The respondents are
directed to act on the Annexure AA recommendations of
September, 2009 of the Board of Officers and grant
compassionate appointment to the applicant against a
post of Safaiwala / Mazdoor / Chowkidar within a period
of three months from the date of receipt of a copy of this
order."
14. The petitioners had also filed a Review Petition seeking
review of the order dated May 23, 2017. It was primarily on the
ground that the Board of Officers proceeding held in September,
2009 referred in paragraph 2.3 of the order / judgment was a basic
preliminary board only to process the application and documents
of the respondent in OA through CWE Bareilly to HQ CE Bareilly
Zone for inclusion of his name in the Zonal Board. The Zonal
Board is the main Board and this process is followed in every such
cases while processing documents to higher HQrs. However, in
paragraph 11 of the Judgment the Tribunal has presumed the
recommendation of this preliminary Board Proceedings in
September, 2009 as a final board proceeding / recommendations
and thus there is an apparent error on the face of the order /
judgment. It was also the ground for review that paragraph 2.3 of
the Order / Judgment of which review is sought there is a reference
of five vacant posts of Safaiwala, in fact, indicates deficiency of
GE (East) Bareilly and not clear vacancies released by competent
authority for compassionate appointment, in as much as
compassionate appointment is made against 5% of the total
vacancies and that too when the same is released by the competent
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.02.2023
17:48:01
Neutral Citation Number: 2023/DHC/001254
authority.
15. It is stated that as per relevant rules and instructions, the
vacancies are filled on receipt of local recruitment sanction from
the competent authority for filling 5% quota of compassionate
appointment. It was averred that the impugned order dated August
29, 2012 has been issued after taking into consideration all aspects
of the case of the respondent by the Board in which his marks were
66 and the number of vacancies were 25 and his merit was 110 and
the cut off marks of last candidate were 78. Therefore, there was
no merit in the case of the respondent for grant of compassionate
appointment.
16. Finally the Tribunal dismissed the Review Petition by
referring to the Judgment of the Supreme Court in the case of State
of West Bengal and Ors. v. Kamal Sengupta and Anr. (2008) (3)
AISLJ 209.
17. The submission of Mr. Jaswinder Singh, learned counsel
for the petitioners is by referring to the order dated August 29,
2012 passed by the petitioners on the application submitted by the
respondent wherein in paragraph 5, reference has been made to the
DoP&T instructions issued on May 5, 2003 and also the
instructions issued by the Engineering-in-Chief dated November
30, 2011 which laid down time limit for making compassionate
appointments. The said order also makes a reference to the total
marks secured by the respondent as 66 as against the cut-off marks
of the last candidate being, 78.
18. In other words, it was his submission that since there were
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.02.2023
17:48:01
Neutral Citation Number: 2023/DHC/001254
limited number of vacancies and the cut-off marks obtained by the
respondent was much less than the cut-off marks secured by the
last candidate, i.e., 78, the candidature of the respondent was
rightly rejected.
19. According to him, the Tribunal had failed to appreciate
that the Board of Officers proceedings held in September, 2009
was a basic preliminary board only to process the application and
documents of applicant in OA through CWE Bareilly to HQ CE
Bareilly Zone for inclusion of his name in the Zonal Board. The
Zonal Board is the main Board and this process is followed in
every case while processing documents to the headquarters for
consideration. According to him, the Tribunal has presumed that
the recommendation of the basic preliminary board proceedings in
September, 2009 as final board proceedings/ recommendation, was
an apparent error on the face of order/ judgment as finding of fact
is contrary to the actual facts and original records which
constitutes an error apparent on the face of record.
20. He stated that it is the petitioners in the review application
who indicated that in the light of the DoPT circular, the case of the
respondent could be reconsidered and re-examined based on the
receipt of fresh application and financial status, but the Tribunal
overlooking that order directed appointment of the respondent
straightway. He submitted that the fresh evaluation of the
respondent was imperative in view of the fact that his financial
condition and other parameters may have changed and there may
be more deserving cases than him. It was the endeavour of Mr.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.02.2023
17:48:01
Neutral Citation Number: 2023/DHC/001254
Singh to submit that the Tribunal in Para 2.3 has stated that there
were five vacant posts of Safaiwala. However, five vacancies of
Safaiwala indicates deficiency of GE (East), Bareilly and not clear
vacancies released by competent authority for compassionate
appointment inasmuch as compassionate appointment is made
against 5% of total vacancies and that too when the same is
released by competent authority. As per the relevant rules and
instructions, vacancies are filled on receipt of local recruitment
sanction from the competent authority for filling 5% quota of
compassionate appointment. It escaped the notice of the Tribunal
that the impugned order dated August 29, 2012 has been issued
after taking all aspects of the respondent in the board in which his
marks were 66 and number of vacancies were 25 and the
respondent's merit was 110 and the cut-off marks of the last
candidate was 78. Therefore, there is no merit in the case of the
respondent in the OA for compassionate appointment.
21. That apart, he also stated that the position of the
respondent being much below as compared to the last selectee and
the number of vacancies being limited, there is no occasion for the
petitioners herein to offer appointment to the respondent along
with other candidates because of non-availability of vacancy. He
submitted that the speaking order passed by the petitioners herein
was justified in the facts of this case and the Tribunal could not
have interfered with the decision which was the subject matter of
the said order.
22. On the other hand, learned counsel for the respondent
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.02.2023
17:48:01
Neutral Citation Number: 2023/DHC/001254
would justify the impugned order of the Tribunal by stating once
there is a recommendation in favour of the respondent, there is no
reason for the petitioners to deny the appointment to the
respondent as the recommendation surely signifies the
circumstances of the family of the deceased employee which
required immediate action to tide over the situation resulting in the
death of an earning member in the family. She seeks the dismissal
of the writ petition.
23. Having heard the learned counsel for the parties, the short
issue which arises for consideration is whether the Tribunal is
justified in directing the petitioners to give compassionate
appointment to the respondent herein. Most of the facts are not in
dispute.
24. No doubt, there was a recommendation in favour of the
respondent by a preliminary Board which processed the
application and the documents of the respondent. The grant of
compassionate appointment was to be considered by the Zonal
Board at the Headquarters. According to Mr. Singh, the Zonal
Board is the main Board and such a process is followed in every
such case, i.e., recommendation made by a preliminary board to
the Zonal Headquarters. According to him, it is the Zonal
Headquarters which considers the applications of all the applicants
and by determining the inter-se merit for grant of compassionate
appointment from amongst the applicants who have applied for
compassionate appointment gives compassionate appointment
based on a marking system.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.02.2023
17:48:01
Neutral Citation Number: 2023/DHC/001254
25. We may at the outset submit, the respondent has not
challenged the process followed by the Zonal Board for making a
compassionate appointment. Respondent has also not challenged
the marks secured by him as 66. He has also not challenged the
cut-off marks of 78 of the last selectee for appointment.
26. If that be so, there is a difference of almost 12 marks
between the last selectee and the respondent. That apart, the merit
of the respondent was 110. The respondent having not secured
marks above 78 was not within the 25 candidates selected for
compassionate appointment. It is a conceded case of the
respondent that the only recommendation which was made in his
favour by Board of Officers was by stating, he be granted
compassionate appointment. Such a recommendation would not
be in the nature of a final decision to be accepted by the Zonal
Board. This we say so, the Zonal Board is not only considering
the application of the respondent but also the applications of other
candidates who have applied for a similar benefit. It is on an inter-
se assessment based on marking criteria that a decision has been
taken.
27. If that be so, the process evolved by the petitioners and the
recommendations made by the Zonal Board cannot be faulted.
There can be persons, who are below the last selected candidate
but above the respondent, who have a prior right having secured
more marks than the respondent for such an appointment. Clearly
the direction of the Tribunal was by overlooking the aforesaid
important aspects. It is despite the fact that the impugned order
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.02.2023
17:48:01
Neutral Citation Number: 2023/DHC/001254
which was challenged before the Tribunal dated August 29, 2012
states in clear terms, the process evolved by the petitioners and
their decision as to why the respondent is not entitled to a
compassionate appointment, which according to us, has been
clearly overlooked. The process evolved is a well laid-out process;
which is not under challenge. That apart, it is the case of the
petitioners that there is no vacancy existing against the quota
meant for making compassionate appointment which aspect has
also been overlooked by the Tribunal. The appointment with
which we are concerned, is pursuant to an application submitted by
the respondent in the year 2009, and fourteen years have gone by
and additionally, we find that the wife of the deceased and his
family is receiving family pension. It has received terminal
benefits of ₹3.89 Lakhs and income is being earned by members of
the family including from a property. Keeping in view the totality
of the facts, we are of the view, the Tribunal has clearly
misdirected itself in giving a direction in the manner, it has given
in the impugned order. The same is unsustainable. The impugned
orders dated May 23, 2017 and August 21, 2017 of the Tribunal
are liable to be set aside. It is ordered accordingly.
28. The writ petition is allowed and disposed of. No costs.
V. KAMESWAR RAO, J
ANOOP KUMAR MENDIRATTA, J.
FEBRUARY 22, 2023/jg
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.02.2023
17:48:01
