- (1.) THIS writ petition has been preferred challenging the order passed by the Central Administrative Tribunal (Patna Bench) Circuit Bench at Ranchi in O.A. No. 51/00014/2014(R) dated 10th February, 2014, whereby the application preferred by this petitioner was dismissed and the order passed by the Senior Superintendent of Post Office, Santhal Pargana Division, Dumka dated 4th February, 2013 was upheld. The application for compassionate appointment of the petitioner was rejected vide order dated 4th February, 2013 and, thereafter, the petitioner had challenged the order dated 4th February, 2013 before the Central Administrative Tribunal in O.A. No. 51/00014/2014(R). The original applicant has preferred this writ petition for getting compassionate appointment because of death of his father, who expired on 27th July, 2007.
(2.) LEARNED counsel appearing for the petitioner submitted that the valuation of the property arrived at by the respondents is absolutely false. Instead of Rs. 3,99,700/, the valuation of the property arrived at by the respondents is at Rs. 1,99,700/, as per the certificate given by the Circle Officer, Karon which is at Annexure10 to the memo of this writ petition. Moreover, the points which are given by the respondents, are absolutely incorrect and, therefore, the petitioner should have been given employment on compassionate basis on death of his father who expired on 27th July, 2007. This aspect of the matter has not been properly appreciated by the Central Administrative Tribunal (Patna Bench) Circuit Bench at Ranchi in O.A. No. 51/00014/2014(R). If the criteria are same, the points given to this petitioner for different years cannot be different. This aspect of the matter has also not been appreciated by the Central Administrative Tribunal and, hence, the order passed by the Central Administrative Tribunal (Patna Bench) Circuit Bench at Ranchi in O.A. No. 51/00014/2014(R) deserves to be quashed and set aside.
(3.) LEARNED counsel appearing for the respondents submitted that compassionate appointment is not a matter of right, at all. In fact, the father of the petitioner expired on 27th July, 2007. Approximately seven and half years' period have already been lapsed. The very purpose of compassionate appointment has been frustrated, by now. It is further submitted by the learned counsel appearing for the respondents that as per the circular issued by the respondents dated 20th January, 2010, the petitioner's case was considered along with several other candidates and more suitable candidates, who were in more need of the compassionate appointments, were given employment. In the year 2008, there were 7 vacancies and the cases of total 28 candidates like the petitioner were considered, but, more needy and suitable candidates were appointed in the year 2008. In the year 2009, there were 11 vacancies and the cases of total 32 candidates like the petitioner were considered and other more suitable candidates were appointed on compassionate basis. Third time in the year 2010, there were few vacancies and the cases of 40 candidates like the petitioner were considered. The case of the petitioner along with other candidates was also considered and other more suitable candidates were appointed. This aspect of the matter has been referred, in detail, in paragraph 6 of the order passed by the Central Administrative Tribunal dated 10th February, 2014. As per the Government circular dated 5th May, 2003, the case of the petitioner can be considered for three consecutive years. This circular has also been followed by the respondents and, hence, no error has been committed by the Central Administrative Tribunal in dismissing O.A. No. 51/00014/2014(R), preferred by this petitioner and, therefore, the present writ petition may not be entertained by this Court. Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this writ petition mainly for the following facts and reasons: (i) The father of this petitioner, who was working with the Postal Department of the respondents, expired on 27th July, 2007, thereafter, this petitioner applied for the compassionate appointment. (ii) As per the circular dated 5th May, 2003, the case of the petitioner can be considered for three continuous years for the vacancies of three continuous years i.e. for the years 2008, 2009 and 2010. As per this circular, the case of the petitioner has been considered thrice, but, there are other similarly situated candidates and in comparative evaluation, other candidates were found more suitable as they were in more need of compassionate appointment, looking to several parameters as stated in the circular issued by the respondents dated 20th January, 2010 and, hence, they were given compassionate appointment and the petitioner could not secure compassionate appointment. (iii) There were 7 vacancies in the year 2008. There were other similarly situated candidates like the petitioner, who were 28 in number. The case of this petitioner was considered along with similarly situated other candidates whose some relatives have expired during period of service with the respondents and in comparative assessment with other candidates, the petitioner was not found suitable and, hence, he was not given employment in the year 2008. Circular dated 20th January, 2010 has been followed scrupulously and other parameters were taken into consideration, as stated in the said circular, for comparative evaluation along with other similarly situated candidates. (iv) For the year 2009, there were 11 vacancies. Out of total 32 candidates like the petitioner, who have also lost their close relatives who were in the services of the respondents. The cases of all the candidates were considered in light of circular dated 20th January, 2010 and upon comparative assessment, the petitioner was not found suitable for the vacancies of year 2009. (v) For the year 2010, there were further several vacancies and there were total 40 candidates. The parameters which are referred in the circular dated 20th January, 2010 were appreciated for 40 candidates and in comparison with other candidates, the petitioner was also given marking, but, he could not get the compassionate appointment. (vi) Thus, every time for three consecutive years after the death of father of this petitioner, who expired in the year 2007, the case of the petitioner has been considered for the vacancies for the years 2008, 2009 and 2010, but, other candidates were found more suitable as they were in more need of compassionate appointment. Looking to several aspects of the matter, it has been stated in paragraph 5 of the order passed by the Central Administrative Tribunal that this petitioner was not given employment. (vii) For ready reference, paragraph 5 of the order passed by the Central Administrative Tribunal (Patna Bench) Circuit Bench at Ranchi in O.A. No. 51/00014/2014(R) dated 10th February, 2014 reads as under: "5. Learned counsel for the respondents, on the other hand, submits that OA 174 of 2011[R] was disposed of at admission stage itself on the ground that the 21.07.2011 order rejecting the case of the applicant was a non speaking order. Thereafter, the respondent no. 3 has considered the case and passed a detailed and reasoned order. Since the applicant has already been given three considerations and more deserving cases were recommended, his case was rejected. He also submits that both the sons of the deceased employee were major and the family of exofficial was paid a sum of Rs.2,77,277/ as gratuity, Rs.71,624/ as GPF, Rs.48,512/ as CGEGIS and Rs.91,128/ as leave encashment. Rs.5,720/+ Dearness Relief is being paid as family pension per month. The exofficial had his own house, 0.05 acre of land and movable and immovable properties worth Rs.3,99,700/. In view of these the Committee did not recommend his case for further consideration. As adequate consideration has been given to the case of the applicant for the vacancies of the years 2008, 2009 and 2010 his case has finally been closed." In view of the aforesaid aspects of the matter, the case of the petitioner has been duly considered by the respondents. (viii) Learned counsel appearing for the petitioner submitted that there is wrong valuation of the immovable property of the petitioner, looking to Annexure10 to the memo of this writ petition which is about valuation of the immovable property. We are not accepting the argument canvassed by the learned counsel appearing for the petitioner mainly for the reason that suffice it will be for the purpose of the compassionate appointment, to be verified by this Court that the case of the petitioner was considered. There were several other similarly situated candidates for all three years i.e. for the years 2008, 2009 and 2010 and looking to comparative assessment for those three years, it appears that other similarly situated candidates were in more need of compassionate appointment. For this evaluation, detailed order has been passed by the respondents dated 4th February, 2013 which is at Annexure7 to the memo of this writ petition. (ix) We are not sitting in appeal against the order passed by the respondents dated 4th February, 2013. In fact, compassionate appointment cannot be claimed by any one as a matter of right. It is an exception to Article 16 of the Constitution of India. This exception has been carved out only to support family of the deceased for immediate measurement, but, in this case looking to the date of death of the father of this petitioner, emergency is already over. Approximately seven and half years' period have already been lapsed and, therefore, no compassionate appointment can be given to this petitioner. (x) It has been held by the Hon'ble Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana and others, 1994 4 SCC 138 in paragraphs 2 to 6, which read as under: "2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in nonmanual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. 3. Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible. 4. It is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even directed compassionate employment either as a matter of course or in posts above Classes III and IV. We are also dismayed to find that the decision of this Court in Sushma Gosain v. Union of India has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above Classes III and IV. In the present case, the High Court has rightly pointed out that the State Government's instructions in question did not justify compassionate employment in Class II posts. However, it appears from the judgment that the State Government had made at least one exception and provided compassionate employment in Class II post on the specious ground that the person concerned had technical qualifications such as M.B.B.S., B.E., B.Tech. etc. Such exception, as pointed out above, is illegal, since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the penurious condition of the deceased's family. Neither the qualifications of his dependant nor the post which he held is relevant. It is for this reason that we are unable to understand the following observations of the High Court in the impugned judgment: "We are of the view that the extraordinary situations require extraordinary remedies and it is open to the Government in real hard cases to deviate from the letter and spirit of the instructions and to provide relief in cases where it is so warranted. To hold as a matter of law that the Government cannot deviate even minutely from the policy of providing appointment only against Class III and Class IV posts, would be to ignore the reality of life these days. It would be ridiculous to expect that a dependant of a deceased Class I Officer, should be offered appointment against a Class III or IV post. While we leave it to the Government to exercise its discretion judiciously in making appointments to Class I or II posts on compassionate grounds, yet a word of caution needs to be struck. It is to be noted that such appointments should be ordered in the rarest of rare cases, and in very exceptional circumstances. As a matter of fact, we would recommend that the Government should frame a policy even for such appointments." 5. It is obvious from the above observations that the High Court endorses the policy of the State Government to make compassionate appointment in posts equivalent to the posts held by the deceased employees and above Classes III and IV. It is unnecessary to reiterate that these observations are contrary to law. If the dependant of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity. 6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over." (xi) It has been held by the Hon'ble Supreme Court in the case of Sanjay Kumar v. State of Bihar and others, 2000 7 SCC 192 in paragraph 3, which reads as under: "3. We are unable to agree with the submissions of the learned Senior Counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the breadearner who had left the family in penury and without any means of livelihood. In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education v. Pushpendra Kumar. It is also significant to notice that on the date when the first application was made by the petitioner on 261988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief." (xii) It has been held by the Hon'ble Supreme Court in the case of Santosh Kumar Dubey v. State of Uttar Pradesh and others, 2009 6 SCC 481 in paragraphs 10 to 13, which read as under: "10. Admittedly, the father of the appellant was untraceable from 1981. Without entering into and deciding the issue as to whether employment on compassionate grounds could be asked for in a case of deemed death under Section 108 of the Evidence Act, even if we assume for the sake of argument that it can be so demanded and asked for, such a right should and could have been exercised in the year 1988 and computing the period of five years therefrom the period of limitation for making an application for employment in the case of the appellant expired in the year 1993. 11. The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. 12. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service. 13. In the present case, the father of the appellant became untraceable in the year 1981 and for about 18 years, the family could survive and successfully faced and overcame the financial difficulties that they faced on missing of the earning member. That being the position, in our considered opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions. The appeal, therefore, has no merit and is dismissed." (xiii) It has been held by the Hon'ble Supreme Court in the case of MGB Gramin Bank v. Chakrawarti Singh, 2014 13 SCC 583 in paragraphs 6 to 9, which read as under: "6. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its breadearner. Mere death of a government employee in harness does not entitle the family to claim compassionate employment. The competent authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years. 7. In Umesh Kumar Nagpal v. State of Haryana this Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court observed as under: (SCC pp. 14041, paras 2, 4 and 6) "2. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for the post held by the deceased. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. 4. The only ground which can justify compassionate employment is the penurious condition of the deceased's family. 6. The consideration for such employment is not a vested right . The object being to enable the family to get over the financial crisis ." 8. An "ameliorating relief" should not be taken as opening an alternative mode of recruitment to public employment. Furthermore, an application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated. 9. The courts and the tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments." In view of the aforesaid decisions, compassionate appointment is not vested right nor there is statutory duty vested in the respondents, much less, it is a public duty vested in the respondents and, hence, no writ of Mandamus can be issued upon the respondents. (xiv) Paragraph 6 of the order passed by the Central Administrative Tribunal (Patna Bench) Circuit Bench at Ranchi in O.A. No. 51/00014/2014(R) reads as under: "6. On perusal of the OA and the order passed by the Tribunal in OA 174 of 2011[R], we note that the fact of three considerations had already been granted to the applicant was not brought to the notice of the Tribunal since it was disposed of at the admission stage itself without the respondents getting any opportunity to file the written statement. On perusal of the speaking order dated 04.02.2013 passed by Sr. Supdt. Of Post Offices, S.P. Division, Dumka, we note that the case of the applicant was considered in the CRC meeting held on 13.01.2010 against seven vacancies of 2008 and seven more deserving cases out of 28 cases were recommended. His case was again considered by the CRC on 04.11.2010 against eleven vacancies for 2009 and again out of 32 candidates, 11 more deserving candidates were recommended. The last candidate recommended had secured 59 points as compared to 53 points secured by the applicant. The case of the applicant was placed before the CRC for the third time on 05.07.2011 along with 39 other cases for the vacancies of 2010 wherein he secured only 49 points as compared to the last candidate who secured 61 points. As his case secured only 49 points, his name was not recommended for appointment and was finally closed." Thus in view of the aforesaid aspects of the matter, we see no reason to take any other view than what is taken by the Central Administrative Tribunal in O.A. No. 51/00014/2014(R). We hereby upheld the decision rendered by the Central Administrative Tribunal. No error has been committed by the respondents in not giving compassionate appointment to the petitioner.;