Dhanwanti vs Chairman, NDMC, Palika Kendra And Ors

Pradeep Kumar, Member (A)

Applicant's husband Shri Mam Chand was working under respondents-NDMC. He unfortunately died on 18.06.2011 in harness. She applied for consideration for compassionate ground appointment. Spot verification of her family conditions was also undertaken by sending staff to her house on 11.11.2011. She was engaged as a daily wager and her name appears at serial no.293 of the order dated 14.07.2014.

Daily wage engagement has since been stopped. She made a representation on 30.05.2017 for compassionate ground appointment. This was received in the office of respondents on 19.06.2017. Thereafter she made another representation dated 21.11.2017 which was received on 27.11.2017.

The respondents have issued an office order on 19.03.2018 wherein a list of 32 candidates has been issued who have been granted compassionate ground appointment. Applicant is aggrieved that her name is not included in this list.

The applicant pleads that since her case for compassionate appointment was already pending with the respondents since 2011, her case ought to have been considered. However, her grievance is that her case has not even been considered.

Per contra, respondents opposed the OA. It was pleaded that compassionate ground appointment is regulated under DoP&T OM dated 16.01.2013 which limits grant of such appointment to only 5% of annual recruitment. Various parameters, e.g., family pension, terminal benefits, other income of family, number of dependents, minors etc. are required to be taken into account for which spot verification was undertaken for the applicant on 11.11.2011. This report concluded as under:

"Spot verification report has received from the Director (Wel.) in r/o Smt. Dhanwanti W/S/o Late Sh. Mam Chand SK Circle No.4 for compassionate appointment. The report speaks that dues i.e. gratuity, pension, GPF, leave encashment are not settled so far except B/S of HNY. Km. Monika DOB 14-3-1990 is unmarried and doing BA 1st year, second daughter Km Sonia DOB 15-12-1993 is also unmarried and studying in 10th Class, son Master Parshant DO 18-11-95 studying in 8th class........

The case is submitted to the authority whether the case may be placed before the Sub-Committee for compassionate appointment please."

Thereafter, following recommendations were made by the authority who approved this note on 08.12.2011:

"In view of above spot verification at 'X' case may be placed before Compassionate appointment sub-Committee pl."

The grant of compassionate ground appointment was recommended and it was considered by a sub-committee on 11.09.2014. However, applicant's name could not be included in the final list due to her lower merit vis-a-vis other candidates.

Since possibility of offering compassionate ground appointment was very much less, a Resolution was passed on 29.01.2014 to extend daily wage engagement to the members of such bereaved families. The applicant had already worked on daily wage basis for 160 days. Accordingly, vide order dated 04.08.2015 another 70 days was also allowed to the instant applicant. Thereafter, daily wage engagement for 89 more days was further extended vide orders dated 28.01.2016.

It was, however, pleaded that such daily wage engagement does not give any right for regularization.

It was pleaded that with a view to consider regularization, certain names were considered by the Committee on 12.05.2016 and it made certain recommendations. However, later on, another notification was issued on 15.12.2016 and some of the salient provisions of this circular read as under:

"1. All the cases where death of the employee has occurred prior to 31.08.2016 will be considered.

xxx xxx xxx

All the candidates who were considered by the Sub-Committee in its meeting held on 12.05.2016 would again be assessed afresh but there is no need for them to apply again.

Those candidates who were not considered by the Sub-Committee in its meeting held on 12.05.2016 would be considered based on the file already prepared by Welfare Department and considered for fresh assessment.

xxx xxx xxx

Fresh request for appointment on Compassionate Ground is to be submitted by 31.01.2017."

As per this circular, the candidates who were considered by the Sub-Committee in its meeting held on 12.05.2016 were required to be assessed afresh but there was no need for them to apply again. As a result of this notification, a total of 585 applications were received. However, the instant applicant did not make any application. Subsequently, another notice was issued on 23.02.2017 wherein two lists were also enclosed as under:

LIST-I LIST-II

Establishment wise name of Establishment wise list of persons dependent of deceased Municipal who has applied in response to employee who were considered by the circular No.2129/SO(E)/SA-XIV Screening Committee in its meeting dated 15.12.2016. held on 12.05.2016 A specific notice was also issued vide para-3 of the above circular which reads as under:

"3. Any person, in whose case, death of NDMC employee had `occurred before 31.08.2016 and who has applied for compassionate appointment but his name have not included in any of the lists mentioned above, may immediately contact to the Section Officer (Establishment), Smt. Suman Verma so that his/her case may be submitted for meeting of Committee."

It was thus expected that the concerned candidates shall see if their names are included in List-I or List-II and if not included, they can still make their application. The instant applicant, however, never applied even after this notice. Since there was no application by her, her name could not be considered.

As a result of this exercise, various candidates were assessed and a final list of 32 candidates who were offered compassionate ground appointments was issued vide orders dated 19.03.2018.

It was pleaded that since the applicant has slept over her right at relevant point of time, she cannot raise the issue now that she has not been considered. In this connection, the respondents relied upon following two judgments by the Hon'ble Apex Court:

i) State Bank of India & Ors. v. Raj Kumar, [(2010) 11 SCC 661]. The relevant observations made by the Hon'ble Apex Court in this judgment are reproduced below:

"9. 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.......

xxx xxx xxx

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."

ii) Union of India & Ors. v. Shashank Goswami & Ors., [(2012) 11 SCC 307]. The relevant observations of the Hon'ble Apex Court are reproduced below:

"9.......Appointment on compassionate ground cannot be claimed as a matter of right. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. Thus, applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.

xxx xxx xxx

This Court in Punjab National Bank & Ors. V. Ashwini Kumar Taneja, (2004) 7 SCC 265, placing reliance upon the earlier judgment in General Manager (D&PB) & Ors. V. Kunti Tiwari & Anr., (2004) 7 SCC 271, held that compassionate appointment has to be made in accordance with the Rules, Regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. Whereas the scheme provides that in case the family of the deceased gets the retrial/ terminal benefits exceeding a particular ceiling, the dependant of such deceased employee, would not be eligible for compassionate appointment.

It was pleaded that since compassionate ground appointment is not a vested right and the instant applicant has not even applied against the repeated notifications, her case cannot be considered now and the OA is required to be dismissed.

It was also pleaded that the instant OA is barred by limitation also as unfortunate death had occurred on 18.06.2011 whereas the OA has been filed in 2018, without there being any application seeking condonation for the delay.

The applicant pleaded that the notices dated 15.12.2016 and 23.02.2017, as has been pleaded by the respondents were published on internet and she, being conversant with Hindi only and from a poor background, could not come to know of these two notices and was unable to apply. But her application was pending as of 14.07.2014 (para 1 supra). Accordingly, her case could not have been ignored and needs to be considered by the respondents.

Matter has been heard at length. Shri Rahul Rohtagi with Shri Syed Ajmal Hasan, learned counsel represented the applicants and Shri Trilok Singh and Shri Subhash Gosain, learned counsel represented the respondents.

Compassionate ground appointment is not a vested right. It is only a benevolent consideration to be extended by the respondents to avoid condition of penury and to tide over immediate financial difficulties faced by the bereaved family. It is noted that towards this objective, the respondents have granted daily wage engagement to the applicant as regular posts for compassionate ground appointment were not available at that point of time. With a view to consider regularization under compassionate ground appointment scheme notices were issued by the respondents on 15.12.2016 as well as again on 23.02.2017. It is seen from the respective notices that these were widely circulated and were even put on all the notice boards. A list of candidates already available with the respondents was also circulated on 23.12.2017 as List-I and List-II and it was further advised that if anybody's name is not included in the said lists, he/she can still immediately contact one of the nominated section Officer (Establishment). Despite this, the instant applicant has not made any representation. With this in view, the action taken by the respondents cannot be faulted. Pleas of applicant that she was not required to apply are not acceptable.

It is, however, noted that the applicant had also made a request to National Commission for Safai Karamcharis (NCSK), who has called for the status report in respect of applicant from the respondents-NDMC. The respondents vide their letter dated 30.11.2017 have advised to NCSK as under: "6. No request for compassionate appointment was received from Ms. Deepa D/o Late Shri Surajpal and as such no assessment has been made to consider her case. The case of Smt. Dhanwanti W/o late Shri Mam Chand was considered in 2011 and 2014, however, was not recommended by the Sub- Committee. As no fresh request for compassionate appointment was received against the circular issued on 15.12.2016, her case was not considered for assessment. However, both the requests for compassionate appointment have been taken on record and will be considered for assessment in the next cycle."

Thereafter, applicant has also made a representation on 24.08.2018 to the respondents, which was received on 24.08.2018.

In view of the above, this OA is disposed of with the directions to the respondents to consider the case of applicant for grant of compassionate ground appointment in their next meeting preferably within next one year. The result of such a consideration be advised to the applicant by passing a reasoned and speaking order within three months thereafter. In any case, applicant will be kept apprised as to the likely schedule of such a meeting being held in next three months. No costs.