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Judgment
By filing this OA, the applicant is seeking the following reliefs:-
“(A)There by direct the respondents to regularize the employment of the applicant in Sport Authority of India on the compassionate ground. Because, vide letter no.SAI/Pers./1781(38)/2015/55 dated 26.05.2015, the respondent no.2 had issued a office order to engage Smt. Pushpa Joshi W/o – Late Shri Hari Dutt Joshi, Ex-Grounds Man, SAI in Govt. Job., on some compensatory ground, despite the fact that she had applied much later then applicant.
(B)Also direct the respondents to compensate the applicant for her financial crises, mental harassment and agony due to non appointment of applicant in place of deceased on compassionate ground
Pass any such other or further order(s), which this Hon‟ble Tribunal deem fit and proper in the interest of justice.”
Brief facts of the case as narrated by the applicant in the OA are that Shri Daulat Ram - husband of the applicant, who was working as Attendant in T.K.S. Pool Department under Sports Authority of India (SAI), expired on 19.8.1997 in an accident leaving behind the applicant and five children.
On 22.6.1998, applicant had made an application for appointment of the applicant in place of her husband on compensatory ground which was responded to by SAI vide letter dated 17.7.1998 to the applicant that there are complete restrictions in the Sports Federation of India for new engagement and whenever the Government will restore the ban, her matter will be respectively considered.
Thereafter applicant submitted her application for grant of compassionate appointment on 12.11.2013, 19.2.2004, 14.12.2004, 1.4.2009. Thereafter SAI vide letter dated 30.6.2019 informed the applicant that due to restrictions in the Sports Federation of India, it is not possible to provide employment on compassionate ground and whenever available it will consider to provide job on such kind of applications in future.
Thereafter applicant submitted her application on 22.4.2012 addressed to the Hon‟ble Minister, which was replied by the SAI vide letter dated 29.5.2012/4.6.2012 that as per rule there are engagement of 5% from category to fill the vacancies on compassionate grounds in Category C & D. The S.I.U. has decreased the vacancies in the Sports Federation of India and there is no vacancy available for the engagement in the category D. They further stated in the said letter that as per the rules of the labour & training department, the matter can be taken for consideration for maximum three years and the matter of Late Sh. Daulat Ram comes in the category of more than three years and that it is not possible for the department to arrange a job on compassionate grounds.
Being aggrieved and dissatisfied with the aforesaid reply, the applicant again wrote application dated 10.3.2014 addressed to the Secretary of Sports Federation of India. In the year 2014, the applicant was appointed on compassionate ground under a contractor in Jawahar Lal Nehru Stadium on compassionate ground.
Thereafter vide letter dated 26.5.2015, the respondents no.2 had issued an office order whereby engaging one Smt. Pushpa Joshi on compassionate appointment.
Being aggrieved by inaction on the request of grant of compassionate appointment, the applicant submitted a legal notice through her counsel and when the same was not responded to by the respondents, she has filed this OA seeking the reliefs as quoted above.
Pursuant to notice issued to the respondents, they have filed their reply in which they have stated that husband of the applicant died on 19.81997, i.e., approximately 19 years back and it is settled position of law that whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family of the deceased from financial destitution and to help it get over the emergency.
They further stated that it is also a settled position of law that compassionate appointment cannot be granted after lapse of reasonable period and it is not a vested right which can be exercised at any time in future. In support of this contention, reliance is placed on the decision of the Apex Court in Civil Appeal No.2206/2006 (Local Administration Department vs. M. Selvanayagam @ Kumaravelu) decided on 5.4.2011.
They also stated that applicant is working as Security Guard with the private agency and getting the salary of Rs.9000/- per month. Further the applicant is also getting the family pension of Rs.8375/- per month.
They further stated that as per the information given by the applicant on 25.8.2015 and 6.11.2015, her son namely Sh. Satinder Singh aged about 34 years is also doing a private job and is getting the salary of Rs.8000/- per month and her other son namely Sh. Praveen Kumar aged about 29 years is getting the salary of Rs.7000/- per month. Taking into account the above mentioned amounts, the total monthly income of the applicant‟s family is Rs.32375/- which comes to Rs.3,88,5000/- as annual total income of the family. Therefore, as per the parameters/economic criteria defined by Ministry of Housing and Urban Poverty Alleviation, Govt. of India, the applicant‟s case falls under the MIG category and therefore, she is not entitled for appointment on compassionate ground.
They further stated that they are also not giving employment to other candidates on the compassionate grounds as in terms of letters dated 17.7.1998 and 30.6.2009, it is evidently clear that there was a restriction for appointment on compassionate grounds in Group „C‟ and „D‟ posts in SAI and it was stated that applicant‟s application could have been considered when the vacancies will be available for the said purpose along with the applications of other candidates.
They further stated that at present no vacancy is available for engagement in Category D and as per the DOP&T OM dated 16.1.2013, the compassionate appointments can be made upto a maximum of 5% of the vacancies falling under direct recruitment quota and appointment can be made only if a vacancy is available for that purpose.
They also stated that the eligibility criteria of compassionate appointment as per the relevant rules as well as judgment/orders passed by various courts are as under:-
The family is indigent and deserves immediate assistance for relief from financial destitution and
ii) Applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules.
iii) The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family of the deceased from financial destitution and help it get over the emergency.
iv) Offering compassionate appointment as a matter of course irrespective of the financial condition of the family of the deceased or medically retired Government servant is legally impermissible.
Only dependents of an employee dying in harness leaving.
Keeping in view the aforesaid position as well as the family income of the applicant, she is not entitled for appointment on compassionate grounds in terms of provision of DOP&T OM dated 16.1.2013.
They also stated that admittedly the applicant is working as Security Guard under a private contractor and thus is not in need for appointment on compassionate grounds and that as per the financial conditions of the applicant and her family, she comes under the MIG Category. They further stated that the said Smt. Pushpa Joshi has been engaged as MTS on contract basis under compassionate grounds as her elder son was suffering from brain tumor and her family members were not earning whereas in the case of the applicant, she is working as Security Guard and getting the family pension and her two sons are working and that all the children of the applicant are major and thus it cannot be assumed that they are dependent on her.
They also stated that the aforesaid legal notice was sent by the applicant to the Secretary, Ministry of Sports, who is not a party in the present application and further the applicant never approached the respondent for challenging of Smt. Pushpa Joshi appointment on contract basis.
The applicant has also filed his rejoinder reiterating the averments made in the OA and refuting the contentions raised by the respondents in their counter affidavit.
Heard learned counsel for the parties and perused the pleadings on records.
During the course of hearing, counsel for the applicant reiterated the same submissions as noted above. On the other hand, learned counsel for the respondents, while reiterating the submissions as noted above, submitted that though the applicant approached by way of application to the respondents within one year of the death of her husband but at the relevant time, there was a restriction on the appointment of Group C and D employees in SAI as per the recommendations of SIU, Ministry of Finance, Government of India. Counsel further submitted that applicant herself stated that in the year 2014, she was given appointment under the contractor as a Security Guard on compassionate ground and the fact is that Smt. Pushpa Joshi whose appointment she is aggrieved by was given appointment on compassionate ground on a contract basis and not against any regular vacancy and her engagement will not bestow any right on her for appointment as regular employee. Counsel further submitted that although applicant stated that respondents have granted appointment on compassionate grounds to other but she has not placed on record any document to show that any person was appointment on regular basis on compassionate ground.
Having heard learned counsel for the parties, it is observed that husband of the applicant died on 19.8.1997 and the application, which was submitted by the applicant for grant of compassionate appointment, was replied by the respondents vide letter dated 17.7.1998 and the applicant has not stated anywhere in her pleadings, during the period from 19.8.1997 to 17.7.1998 or till 30.6.2009 when her further application was replied by the respondents, that any particular person was given appointment on compassionate ground during the period from 19.8.1997 to 30.6.2009. Applicant herself stated in her pleadings that after several correspondence and request, SAI has appointed her under the contractor in 2014 in Jawahar Lal Nehru Stadium on compassionate ground and the said Smt. Pushpa Joshi whose appointment she is aggrieved by was also engaged under a contract only on compassionate ground and was not appointed against any regular group „D‟ post. Further there is no dispute that in terms of OM dated 16.1.2013 vide which comprehensive consolidated instructions on compassionate appointment have been issued by the DOP&T, appointment on compassionate grounds should be made only on regular basis and that too only if regular vacancies meant for that purpose are available. Since the respondents have pleaded non-availability of regular vacancies in the year 1998 and 2009 and no person was shown to have been appointed on regular basis on compassionate ground by the applicant during the said period, the applicant‟s case could not be considered. Further the object of the Scheme of Compassionate appointment is to grant appointment on compassionate grounds to a dependent family member of a Government servant dying in harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood, to relieve the family of the Government servant concerned from financial destitution and to help it get over the emergency but having regard to the fact of this case, we do not find any emergent circumstances at this stage of this matter over 20 years after the death of an employee, which warrants issuance of direction to the respondents to consider her case for grant of compassionate appointment, especially keeping in view the fact that applicant‟s husband died on 19.8.1997 and no proof with regard to appointment of any person on compassionate ground against regular group „D‟ or „C‟ post is brought on record as also the fact that applicant is working as a Security Guard on contract basis since 2014 and her two sons were also employed as per the details given by the applicant herself vide her letters dated 25.8.2015 and 6.11.2015. It is also relevant to mention the clause 9 of the said OM dated 16.1.2013, which reads as under:-
“9. BELATED REQUESTS FOR COMPASSIONATE APPOINTMENT
(a)Ministries/Departments can consider requests for compassionate appointment even where the death or retirement on medical grounds of a Government servant took place long back, say five years or so. While considering such belated requests it should, however, be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the Government servant in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. Therefore, examination of such cases would call for a great deal of circumspection. The decision to make appointment on compassionate grounds in such cases may, therefore, be taken only at the level of the Secretary of the Department/Ministry concerned.
(b)Whether a request for compassionate appointment is belated or not may be decided with reference to the date of death or retirement on medical ground of a Government servant and not the age of the applicant at the time of consideration.
(c)The onus of examining the penurious condition of the dependent family will rest with the authority making compassionate appointment (Para 4 of O.M No.14014/3/2011-Estt.(D) dated 26.07.2012)
Further in the said OM, in clause 19 important court judgments have also been mentioned. Under Clause 19 (f), the judgment of the Hon'ble Supreme Court dated 05.04.2011 in Civil Appeal No. 2206 of 2006 titled Local Administration Department vs. M.Selvanayagam @ Kumaravelu is mentioned in which the Apex Court observed that "an appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependents and the financial deprivation caused to the dependents as a result of his death, simply because the claimant happened to be one of the dependents of the deceased employee would be directly in conflict with Articles 14 & 16 of the Constitution and hence, quite bad and illegal. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind". (O.M. No. 14014/3/2011-Estt.(D) dated 26.07.2012).
In view of the above facts and circumstances of the case and for the reasons stated above, we do not find any merit in this case and the same is accordingly dismissed. There shall be no order as to costs.