PERMOD KOHLI,J. - (1.) PETITIONER is aggrieved of non -consideration for appointment to the post of Junior Clerk -cum -Typist on compassionate basis.
(2.) FACTS relevant for the purpose of present petition are noticed hereunder: Father of the petitioner, namely, Uma Pati Sahay was an employee of Damodar Valley Corporation and was posted in T.S.C. Division III at Panchet. He died in harness on 28.7.1992. After death of the deceased -employee, petitioner's mother filed an affidavit dated 25.8.1992 seeking compassionate appointment for the petitioner. In this affidavit, it was disclosed that her eldest son, namely, Sanjay Kumar Sahay is an employee of D.V.C. at Maithon but he has no concern for the maintenance of her family and living separately. Petitioner's name was brought on the panel prepared for appointment on compassionate ground. This was pursuant to a formal application made by mother of the petitioner, namely, Bimla Sahay dated 4.2.1993 to the Director of Personnel, DVC seeking compassionate appointment for the petitioner. Even a form was filled up by the petitioner which was forwarded along with the aforesaid application and in this form in column -'E' while giving particulars of the family members of the deceased -employee name of Sanjay Kumar Sahay eldest brother of the petitioner was shown with the remarks 'Employed, Maithon Hydle Station, DVC'. Deputy Director of Personnel(TSC) vide his letter dated 8th September, 1998 asked the Assistant Director of Personnel, Recruitment Section to clear the compassionate cases in order of date of death of the deceased employees to avoid future complication. Panel was also forwarded along with this letter and petitioner's name figured at Sl. No. 20 in the panel and another communication dated 9th September, 1999 was forwarded to the various Superintending Engineers for verification of the records of compassionate appointment cases including supplementary list of 35 persons. While the matter was pending for consideration, petitioner received a letter dated 12th September, 2000 asking him to appear before the Committee on 8th November, 2000 for preparation of panel for compassionate appointment. It is stated that petitioner appeared before the Committee with all necessary documents and without taking any decision he was again asked to appear before the interview Board vide letter dated 26.2.2001 for the same purpose and he again appeared before the interview Board. It is further submitted that without taking any decision on the basis of above interviews a notice was issued by the respondents dated 3rd November, 2002 inviting applications in the prescribed proforma from the interested dependants of D.V.C. employees died while in service/retired on invalid pension for employment on compassionate ground. Petitioner states that in response to the aforesaid notice, he again applied but no decision was taken and another office memorandum dated 5th December, 2002 was issued again inviting applications from the D.V.C.'s regular employees as well as empanelled casual, compassionate, displaced, contractor workers, seasonal message assistants and gaugo roadors for recruitment to the post specified in the memorandum. The notice further stipulated that compassionate category of candidates, even if hot empanelled may apply giving the name of the deceased employee, the date of death and the relationship of the candidate with the deceased employee. Post for Junior Clerk -cum -Typist was advertised again. It is stated by the petitioner that he also responded to this memorandum and submitted another application. The date for written examination was fixed on 17.1.2004 for which call letters were issued. Petitioner did not receive any call letter and inquired about the same. He was informed that since his eldest brother is already an employee of D.V.C. therefore, he is not entitled to be considered for appointment on compassionate ground. Petitioner has, accordingly, filed this petition seeking a direction for his consideration for appointment to the post of Junior Clerk -cum -Typist on compassionate ground. In the counter filed, respondents have denied the right of the petitioner for his consideration for compassionate appointment on the ground that eldest brother of the petitioner is already in service of D.V.C and second dependant is not entitled to be appointed. With a view to resist the claim of the petitioner, respondents have referred to a circular No. PLR /Misc /2 (Compassionate) -483 dated 17th July, 1984. Copy of the circular is placed on record. Clause -4 of the circular reads:
(3.) IF the deceased employee's any son/daughter/widow is already in service either in DVC or elsewhere no second dependant will be considered for appointment in DVC on compassionate ground 4. Claim of the petitioner is required to be examined in the light of the aforesaid factual background. There is no dispute about the fact that petitioner's father was an employee of respondent -Company and died in harness. It is also indisputed that the petitioner's eldest brother is serving with the respondent -Company and was its employee even at the time of death of his father. Petitioner's mother had disclosed the fact in her first affidavit seeking compassionate appointment for the petitioner. Even in the form filled up this fact has been revealed. A panel was prepared for compassionate appointment and petitioner's name all along figured therein. Respondents have issued various communications asking the petitioner to appear for interview. He participated in all interviews for which he was asked to appear.;