Adarsh Barai vs The Comptroller And Auditor General Of India & Ors.

By Mallika Arya, AM

The present original application has been directed against the order dated 08.11.2019 (Annexure A-16) whereby the mother of the applicant has been informed about closure of claim for appointment of her son on compassion-nate grounds. Prayer has also been made for a direction to the respondents to consider the claim of the applicant for compassionate appointment to the applicant.

Learned counsel for the applicant has submitted that after death of his father on 21.10.2012, the applicant submitted an application for appointment on compassionate grounds in the proper format on 14.02.2013 (Annexure A-1). Thereafter, the applicant received several communications from the respondents i.e. 02.06.2014, 13.08.2014, 09.12.2014, 06.01.2015, 13.01.2015, 14.01.2016, 03.02.2016 etc. Each and every time his claim was declined on the ground of non-availability of vacancy. The learned counsel for the applicant has further submitted that vide their last communication dated 08.11.2019, the respondents have closed the claim of the applicant (Annexure A-16) in a very casual manner. The learned counsel for the applicant has contended that during all these years, the case of the applicant was never considered by the Departmental Screening Committee as there was no vacancy under dying in harness quota. Thus, the learned counsel for the applicant has submitted that non-consideration of the case of the applicant in accordance with relevant rules on the subject is illegal, arbitrary and unjustified and prayed for a direction to the respondents to consider the claim of the applicant as per rules.

Per contra, the respondents have filed reply raising preliminary objection with regard to delay in filing of present original application. The learned counsel for the respondents have submitted that since the closure of the claim of the applicant was informed to him vide order dated 27.06.2017, therefore, he was required to approach this Tribunal within one year from the date of the order dated 27.06.2017. The learned counsel for the respondents has further submitted that despite the fact that there is an inordinate delay in filing the OA, no explanation has been given by the applicant for the same. Therefore, the learned counsel for the respondents has prayed to dismiss the OA being time barred.

On merits, based on the contents of the reply of the respondent, the learned counsel for the respondents has submitted that the case of the applicant was considered in accordance with DOPT guidelines by adopting a balanced and objective assessment of the financial condition of the family taking into consideration its assets and liabilities as well as other relevant factors such as the presence of earning members, size of family, age of the children etc. The learned counsel for the respondents has also submitted that on receipt of application for appointment on compassionate grounds, the case of the applicant could not be considered in the year 2013 due to non-availability of vacancy. Thereafter, in the year 2014, his case was considered by the Departmental Screening Committee (in short DSC) along with other candidates but he could not be recommended having lower merit position as there was only one post. Thereafter, the applicant’s case was considered by the DSC time and again on 19.02.2016, 21.04.2016, 30.08.2016, 09.12.2016, 13.02.2017 and 26.05.2017 but he could not be recommended due to limited number of vacancies and large number of applicants. Learned counsel for the respondents has also invited our attention to the marks awarded by the DSC on point wise criteria (page 9 of reply) and has submitted that due to limited number of posts, there being and more deserving candidates having higher points, the applicant could not be recommended for compassionate appointment. Learned counsel for the respondents has also submitted that the Court or Tribunal cannot give direction for appointment of a person on compassionate grounds but can merely direct for consideration and thus prayed that the OA may be dismissed.

The applicant has also filed rejoinder in which nothing new has been added.

We have heard both the learned counsel for the parties and perused the pleadings on record. We have also considered the rival submissions.

With regard to preliminary objection raised by the respondents, we find that there is a substantial delay in filing the present OA for which no comprehensive explanation has been offered by the applicant. We also did not find force in the submission of the applicant’s counsel during course of the arguments that since the application seeking appointment on compassionate grounds has been filed by the applicant with the respondents well within time, therefore, there is no delay in filing of the present original application.

It is not disputed that the father of the applicant died in 2012 and the family has survived during all these years. It is a settled law that appointment on compassionate grounds can be considered only if the family is in indigent circumstances and not as a matter of right, which can be executed at any time in future. However, it is seen that undisputedly the matter was considered by the Departmental Screening Committee on several occasions wherein various parameters were analyzed by the Committee who came to the conclusion that the request for compassionate appointment has been re-examined in terms of existing Government orders on the subject and is not found to be a fit case for granting compassionate appointment. The consideration of the case of the applicant by the DSC has not been denied by the applicant’s counsel. We also find that there is no procedural infirmity and since the scope of judicial review is otherwise limited, the court cannot substitute its opinion about the case being deserving or otherwise. The above view finds support from the judgment of Hon’ble Supreme Court in the case of Union Bank of India & Ors. M.T. Katheesh – 2006 SCC (L&S) 1646. It is also the settled law that the High Courts and Administrative Tribunals cannot give direction for appointment of a person on compassionate ground but can merely direct for consideration of the claim for such an appointment – Life Insurance Corporation of India Vs. Mrs. Asha Ramchandra Ambekar & Ors – JT 1994 (2) SC 183.

Further, in the case of Umesh Kumar Nagpal Vs. State of Haryana and others – JT 1994(3) SC 525, Hon’ble Supreme court has clearly held that appointment on compassionate grounds can be considered only if the family is in indigent circumstances and not as a matter of right, which can be exercised at any time in future. Hon’ble Supreme Court has laid down following the important principle regarding compassionate appointment.

The present case does not pass the litmus test of conditions laid down by the Hon’ble Supreme Court in the case of Umesh Kumar Nagpal Vs. State of Haryana (Supra). As the case of the applicant has gone through the due process and has already been considered by the respondents on merits, hence in view of the forgoing discussions, we do not find any procedural infirmity in the action of the respondents.

Further, in view of the decisions rendered by Hon’ble Supreme Court in the case of State of J&K and Ors. Vs. Sajad Ahmed Mir (2006)5 SCC 766 and 2007(1) SCC (L&S) 668, National Institute of Technology Vs. Manoj Kumar Singh, the appointment on compassionate ground cannot be granted after lapse of sufficient time of the death of an employee. As per the decision of Hon’ble Apex Court rendered in State of J&K (supra), ‘once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Art. 14 of the Constitution’. In the present case the father of the applicant died in the year 2012 and the family has survived during all these years.

In view of the aforesaid observation and law laid down by Apex Court, the applicant has failed to make out any case for interference by this Tribunal. Accordingly the O.A No. 191/2022 is dismissed being devoid of merit.

There shall be no order as to costs.