Shalu Tyagi vs State (NCT Of Delhi) And Ors

The applicant has filed this Original Application, claiming the following reliefs:-

"i. To quash the impugned order dated 30.03.2016 passed by R3.

ii. to declare the applicant as permanent employee of R1 and direct the respondents to regularize and release the pay and allowances & other entitlements of the applicant for the period 10.05.2012 till date with interest & treat the said period as spent on duty; and OR.

iii. to pass such other order or orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances.

Brief facts as stated by the applicant in his OA are that his father expired on 21.01.2012 while in service leaving behind 2 sons and a widow. Both the sons were unemployed and dependant on father. Therefore, to overcome the financial hardships, the applicant applied for compassionate appointment and was accordingly appointed as computer operator cum typist in the office of the respondents on 10.05.2012 and since then, he is continuing as such. It is further submitted that the applicant always thought that he had been appointed on a permanent Government job and was diligently and honestly doing his job. He was never in an apprehension that he is not on a government job nor was he ever told so till he received the impugned order dated 30.03.2016. Being aggrieved with the impugned order, the applicant has filed the present OA.

Opposing the OA, learned counsel for the respondents has drawn attention to the order of this Tribunal dated 07.10.2016 which is reproduced as under:-

"The matter is heard on interim relief today.

The claim of the applicant is that his services as a computer typist was being taken by the respondents starting from 16.07.2012 till 24.08.2016. In this regard, the applicant has filed certain documents as Annexure A-5 (colly.) showing the number of papers he has typed date-wise as also the payment received by him from the department from time to time. It is stated that though there was no formal appointment letter, the respondents have been taken work from him, as would be evident from the payment order annexed to the OA cited above.

The respondents in their reply (handed over today during hearing) stated that the applicant was never appointed by the respondents. In fact, it is pointed out in the sheets annexed to the OA indicating the dates and number of pages typed on those dates, the heading is "Details of computer paper typing on outsourced basis".

It is stated that the respondents have never appointed him even on a casual basis and the work and payment to the applicant relate to the work, when such work was outsourced to him. The respondents have also produced before me the biometric attendance sheets from 21.01.2016 to August, 2016, in which the name of the applicant does not figure. It is stated that all regular employees, casual employees are required to enter their presence in the biometric system everyday. This also proves that he is not a casual employee. It is, therefore, prayed that interim relief may not be granted.

I have heard the learned counsel for both sides and perused the documents produced.

Prima facie, it appears that work was outsourced to the applicant, as is evident from the heading of the sheets filed by the applicant himself and also from the biometric sheets filed by the respondents. In view of this, prayer of interim relief is rejected."

It is, thus, as evident from the above order that the applicant was never given appointment on compassionate basis nor was he regularly appointed. Hence, his claim that he was working till 24.08.2016 on regular basis, is not borne out by facts as he has no formal appointment order and the work was outsourced to him.

Learned counsel for the respondents has also been able to show from their reply that the Screening Committee constituted for the purpose of compassionate appointment considered the case of the applicant in its meetings held on 04.01.2016, 13.01.2016 and 02.02.2018 and did not find the case fit for recommendation for appointment on compassionate grounds. As such, it cannot be said that the case of the applicant was not considered for compassionate appointment.

The respondents have raised a preliminary objection that the matter is time barred but as this is a case of compassionate appointment for which any eligible person can apply innumerable times, this plea is not maintainable.

On examination of the records, it revealed that deceased had an ancestral house measuring 50 yards at Burari and the widow is drawing pension @ Rs.5405/- + DR PM. Applicant's case for compassionate appointment was duly considered by the Screening Committee on 04.01.2016, 13.01.2016 and 02.02.2016 but his case was not found fit for the same.

Law on the subject of compassionate appointment is well settled now that neither can it be sought as a matter of right nor as a line of succession. A person only has right of consideration. So long as the case of the applicant has been considered and rejected on valid grounds, it calls for no interference.

It is also settled law that compassionate appointment can be given only to 5% of the direct recruitment vacancies meant for a year, therefore, naturally all the applicants under this category cannot be given compassionate appointment otherwise it would amount to opening another mode of recruitment de hors the rules.

Since the number of vacancies are limited while number of applications are far more for compassionate appointment, naturally only those applicants who are found to be most deserving looking at their financial condition and other parameters and who come within the number of vacancies meant for compassionate appointment can be given the compassionate appointment.

In view of above, no case for interference is made out. OA is accordingly dismissed.

However, the DoPT has issued detailed instructions with regard to compassionate appointment as stipulated in FAQ No. 38 dated 30.05.2013. Accordingly, the applicant can again submit application in the prescribed format for consideration of his appointment on compassionate grounds, along with necessary certificates and documents. If the applicant submits such application, the respondents are directed to consider the same in the next meeting of the Screening Committee constituted for the purpose of compassionate appointment and thereafter inform the applicant of the decision of the Committee accordingly.

No order as to costs.