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Judgment
P.R. Ramachandra Menon, J.—Claim for compassionate appointment to a close relative of the employees, who voluntarily retired on medical ground, is the subject matter involved in both these cases. The 1st petitioners in both the writ petitions were the employees of the respondent Commission and the 2nd petitioners are the daughter and son respectively. Both the 1st petitioners were working under the Commission in a lower level post in the hierarchy and before attaining the age of 55 years, they submitted Ext. P1 application for voluntary retirement and invalid pension. There is no dispute that the applications were accepted and the employees were permitted to retire voluntarily and they have been granted the invalid pension in tune with the relevant norms.
In view of Ext. P5 Scheme prevailing under the respondent Commission, providing for compassionate appointment, the petitioners submitted Ext. P3 application claiming the benefit. As per Ext. P7 letter dated 14.2.2005, the petitioners were let known, that their application for compassionate appointment could not be considered. It was challenged before this Court by filing W.P.(C).Nos. 8829/2005 and 22707/2005 respectively, whereby the impugned orders were set aside and the matter was directed to be reconsidered, as specified.
Pursuant to the review petitions filed by the respondents herein, the direction given by this Court as per the above judgments was modified only to a limited extent; being aggrieved of which, W.A.Nos. 1942/2010 and 1270/2010 were preferred by the respondents. After hearing both the sides, a Division Bench of this Court, as per Ext. P8 verdict dated 1.7.2011 set aside the judgments in the writ petitions allowing the appeals and the writ petitions were disposed of, directing the competent authority to consider the applications preferred by the concerned parties for compassionate appointment and to pass appropriate orders within ''two months'' as specified. It was pursuant to the said verdict that, the applications were considered by the competent authority, who passed Ext. P10 order dated 22.09.2011 rejecting the claim, which in turn is under challenge.
The respondents have filed a detailed counter affidavit referring to the sequence of events and seeking to sustain the impugned order. It has been stated in paragraph ''5'' of Ext. P10 that the Committee constituted for consideration of compassionate appointment has examined the case of all the concerned petitioners seeking compassionate appointment under the ''5% Direct Recruitment quota'' in its meetings held on 24.09.2004, 22.3.2006, 16.8.2007 and 4.11.2008 and that the claim could not be acceded to, for want of sufficient number of vacancies within the ''5% D.R. quota''. It has been further added in paragraph ''6'' that, as per O.M. No. 14014/19/2002-Esstt(D) dated 5.5.2003 of the Ministry of Personnel, Public Grievances and Pension, DoPT, Government of India, (a copy of which has been produced along with counter affidavit as Ext. R3(a)), the maximum period a person''s name can be kept under consideration for offering compassionate appointment, is ''three years''. If compassionate appointment is not possible to be offered to the applicant during such period, the case will be finally closed and it can''t be considered again. It is further pointed out in paragraph ''9'' that, the Commission in its 579th meeting held on 26.3.2010, had revised the order of priority, as recommended by the Committee, for considering the cases under compassionate appointment scheme and has issued a Circular dated 28.6.2010 (Ext. P9) wherein, the compassionate appointment in respect of invalid pension case has been arrayed at ''Serial No. XIII'' in the order of priority, i.e., after the death cases to be considered in preference under Clauses I to XII.
It is brought out in the counter affidavit that, pursuant to Ext. P8 verdict passed by this Court, the matter was considered again, when the Committee observed that, during the period from 1.1.2011 to 30.6.2011, only 12 vacancies had occurred under the ''D.R. quota'' and 5% of the same worked out to be ''0.6'', i.e., considered as one ''1'' clear vacancy available for consideration of the cases under compassionate appointment. Among the pending applications, the most eligible candidate who was categorized under (death cases of Group "C" employees whose widows applied for compassionate appointment and whose children were minors) was found as the fit case to be given the benefit and accordingly, the concerned person, i.e., Smt. Vandana Vijay Kumara, W/o Late Vijay L Kumare, Ex-ADO (BT), who expired on 23.07.2008 was given the appointment. In the above circumstances, it is contended that the course pursued by the respondents is very much transparent and perfectly within the four walls of law.
The Learned Counsel for the petitioners submits that the action pursued by the respondents is per se wrong and illegal and that Ext. P9 Circular dated 28.6.2010, whereby the priority has been fixed, placing the ''invalid pension category'' as the last entry (entry No. XIII) is arbitrary and further that it doesn''t have any retrospective operation. The Learned Counsel points out that, it is a modification brought about only in the year 2010, which could not have been applied to the case of the petitioner employees, who were invalidated granting invalid pension, as early as in the year 2003.
Sri. K. Kesavankutty, learned Standing Counsel appearing for the Commission submits with reference to Ext. P10 order and also the counter affidavit filed by the respondents that, the idea and understanding of the petitioners as to their eligibility and applicability of priority etc., are quite wrong and misconceived. The Learned Counsel submits that there is no dispute with regard to the fact that the ''maximum quota'' earmarked for compassionate appointment as per the relevant provisions of the Scheme is only to an extent of ''5%''. The consistent case of the respondents is that, there were no sufficient no: of vacancies under ''5% quota'' to accommodate the petitioners and the more eligible hands who were standing in front of the queue. The applications preferred by the petitioners were in fact considered on different occasions (altogether ''5'') on 24.09.2004, 22.3.2006, 16.8.2007, 4.11.2008 and lastly on 24.8.2011 (pursuant to Ext. P8 judgment). It is stated that, nobody who is lesser qualified than the petitioners has been given placement in any of the vacancies. It is also pointed out with reference to Ext. R3(a) guidelines issued by the Ministry, that the maximum period for which the claims could be considered is for ''three years''; after which it has necessarily to be closed and there is no case that the respondents have violated any of the norms in this regard.
With regard to Ext. P9 Circular, the learned standing counsel submits that the Commission has fixed the priority in different sectors under the Compassionate Appointment Scheme, as recommended by the Committee, in the order of priority as given in Ext. P9. All the categories ''I to XII'' placed above the category No XIII (where the petitioners come, relating to invalid pensioners) are "death cases". Referring to the very scope and purpose of the Scheme and also the law declared by the Apex Court at different points of time, the Learned Counsel submits that, the Scheme itself envisages to provide employment assistance to a member of the family, because of the sudden and unforeseen demise of the earning member, lest the family should be thrown to streets. It is with the above intent, that the ''priority'' has been fixed based on the relevant yard sticks. Petitioner employees who opted for voluntary retirement, obtaining invalid pension cannot have any better right than the cases involving ''death'' of the concerned employees and as such, the orders passed by the respondents are not assailable under any circumstance.
With regard to the scope of compassionate appointment, it has been made clear by the Apex Court on many a time that, it can never be claimed as a matter of right, ignoring the terms of the Scheme. Various factors come into play and the ''time factor'' and extent of reliefs payable under the relevant Scheme are important. When the Scheme stipulates only ''5% D.R. quota'', compassionate appointment under the Scheme has to be restricted only to the said quota. Whether the quota has been duly filled up by the respondents or whether the respondents have deviated from the prescribed track, is the point to be considered.
Going by the contents of Ext. P10 and the counter affidavit, it is seen that, the case of the petitioners was considered by the Committee in respect of the vacancy in the prescribed quota. It was rejected for want of sufficient vacancies and the position was conveyed to them as per proceedings dated 14.2.2005. Same was the position in respect of the subsequent meetings held on 22.3.2006 and 16.8.2007 respectively, as there was no vacancy under the ''5% D.R. quota'', to consider the petitioners for compassionate appointment. In the meeting held on 4.11.2008, the Committee considered 24 pending applications including that of the petitioners and offered appointment to ''two'' eligible candidates who came in the ''first category'' of priority (involving the death of Group ''D'' employees whose widows applied for compassionate appointment and whose children were remaining as minors). In addition to the remaining ''22'' applications, ''9'' more additional applications were received for compassionate appointment, taking the total to ''31'' as on 31.3.2009. The case of the petitioners was considered again by the Committee on 24.8.2011 and the Committee observed that there was no sufficient vacancy to accommodate in the quota earmarked (5%) and thus the applications were rejected. It is pointed out that, there is no challenge against the ''Quota'' or the ''Scheme'', in any manner.
Admittedly, the ''first petitioners'' came out on voluntary retirement availing ''invalid pension'' in the year 2003 and they are still continuing to draw pension. The 2nd petitioners who seek for appointment are aged 33 years and 31 years respectively. Almost one decade has already elapsed and there is no case as to any violation of quota or as to the availability of any vacancy under the 5% quota earmarked for compassionate appointment. If the case of the petitioners is to be considered, even without any regard to the priority fixed (placing ''death cases'' in front of ''invalid pensioners''), it will necessarily involve the loss of employment of others who got appointed by virtue of their better credentials. None of them has been brought in the party array and hence their appointment cannot be subjected to challenge and in fact, there is no such challenge as well. With regard to the question of fixation of priority on the basis of Ext. P9, it has been stated by the respondents that, the same has been given effect from the year 2004. Even otherwise, it is seen from Ext. P9 that, the priority given to meet the obligation for providing compassionate appointment and to support the family, is by extending a helping hand in respect of the cases involving "death" of the concerned employees as categorized in Clauses ''I to XII''. The case of the persons who got retired voluntarily, obtaining invalid pension, has been categorized at ''Clause XIII''. According to this Court, the said classification cannot be said as arbitrary or illegal in any manner and it virtually amounts to a ''reasonable classification'', based on the relevant facts, figures and norms; with a meaningful object.
In the above facts and circumstances, this Court finds that the challenge raised by the petitioners against Ext. P10 is not correct or sustainable and it is not assailable under any circumstance. Writ petitions are devoid of any merit and none of the grounds raised in support of the same is tenable. Writ petitions fail and they are dismissed accordingly.