Union of India vs Aseem Sharma

We have heard Mrs Neeru Goswami, Additional Central Government Standing Counsel for appellants as well as Mr J.S. Kotwal, Advocate for

respondent.

The controversy involved in this appeal centered around the question of appointment on compassionate ground of respondent1. Respondent's

father was working as office superintendent Gradel under the appellant. He died on 12.3.1992 in harness. Thereafter, the mother of respondent1

stated to have been applied fop making suitable appointment on compassionate ground. This statement has been however, controverter by Mrs

Neeru Goswami, learned counsel for appellants that no such application has been filed. Be that as it may, another application dated 20.5.1995 has

been preferred by the present respondent and it was processed at various level. As the appointment on compassionate ground did not materialise,

it appears the respondent has also issued a legal notice under section 80 CPC. The said legal notice has been answered by letter dated

26.11.1999, the operative portion of which is extracted below:

At present appointment cannot be offered to Shri Aseem Sharma s/o Late Sh. P.P. Sharma against deceased quota due to non availability of

vacancy. His case will be considered on merit on his own turn as and when vacancy occurs.

Being aggrieved, the respondent preferred service writ petition No. 5667 2000, which has been disposed of by the Learned Single Judge, after

hearing the counsel of both sides. The relevant portion of which, reads as under:

As a result of aforesaid discussion, this writ petition deserves to be allowed and as a consequence of it communication AnnexureD dated

26.11.99 issued by Adm. Off for Chief Engineer, Udhampur zone, PO: Garhi, Udhampur182121 denying the claim of the petitioner is hereby

quashed and setaside. It is further directed that he shall be offered employment on compassionate ground, subject of course fulfillment of other

requirements under law. This exercise shall be completed by respondents on or before 31.3.2001. Registry is directed to supply Dasti copy of this

order on payment of usual charge to the learned counsel for the parties.

By the aforesaid order, the learned single judge has directed the respondent's appointment on compassionate ground and further directed that

the same exercise shall be completed by the respondents in the writ petition on or before 31.3.2001. It would thus appear that positive direction

has been issued in the form of writ of mandamus directing the respondents to appoint the petitioner/respondent on compassionate ground.

Many points have been urged before us by counsel of both sides. The fact remains that the father of the petitionerrespondent herein died in

harness. Normally such family would be entitled for consideration for appointment on compassionate ground, if the family is left in penury due to

demise of the bread winner of the family. It is also noticed from operative portion of order dated 26.11.1999 as quoted above that the respondent

authority was infact considering the case of the petitioner for appointment on compassionate ground. The only factor, which has prevented the

appellant authority not to appoint the petitioner in time, was for want of existence of vacancy for appointment. This would go to show that infact

the appellantauthority was pursuing with the case of the petitioner and it was under active consideration of the appellantauthority, subject to his

possessing requisite qualification and subject to the availability of the vacancy.

It is debated at the bar that in the facts and circumstances aforesaid, the learned single judge was incompetent to issue a positive direction in the

form of writ of mandamus commanding the appellantauthority to appoint the petitioner on compassionate ground. This point has been considered

by the Supreme Court in a catena of cases and the Supreme Court has deprecated the issuance of writ of mandamus by the High Court for a

positive direction to appoint on compassionate ground. To avoid multiplicity, we may refer to few decisions of the supreme court. In state of

Haryana, appellant Vs. Naresh Kumar Bali, respondent (1984) 4 Supreme Court cases 448. it was pointed out by the Supreme Court that High

Court can only direct consideration of writ petitioner's claim to compassionate appointment in accordance with rules. It cannot itself direct

appointment. In Managing Director, MMTC, New Delhi and another, appellants Vs. Pramoda Dei Alias Nayak, respondent (19S7) 11 SCC 390,

it was pointed out by the apex court that the High Court in exercise of power under Article 226 of the constitution, should have directed the

competent authority to consider the case of the candidate and should not have issued direction forgiving compassionate appointment to him. Yet in

another case titled State of Rajasthan, appellant Vs. Chandra Narain Verma, respondent (1994) 2 Supreme Court cases 752, it was pointed out

by the apex court that High Court while issuing direction under Article 226 of the constitution to appoint the respondent as subinspector, was

erroneous.

Keeping in view the aforesaid decisions of the apex court, the law is now well settled that when a complaint is brought before the court for non

appointment on compassionate ground, the court can only direct the respondent for consideration of appointment in accordance with rules and

regulations, if any, and subject to the claimant's possessing of requisite qualification and the availability of posts.

As noticed above, in the instant case, the learned Single Judge has issued writ of mandamus giving positive direction to the appellantauthority to

appoint the petitioner/respondent on compassionate ground, which in our view, was not in consonance with the law laid down by the Supreme

Court, as referred to above. The direction of the learned single judge is accordingly set aside. We, however, reiterate that the appellantauthority

shall continue to pursue the process of considering the appointment of respondent in accordance with rules and regulations. This has been clearly

indicated in communication dated 26.11.1999, which has been setaside by the learned single judge.

We also make it clear that the delay will not come in the way of respondent to have considered his case in accordance with rules and

regulations, if any. This we say because we are of the view that application has been filed within time. If that is so, delay in processing the

application, should not come in the way of the petitioner for consideration of his case. Needless to say that the case of the petitioner shall be

considered alongwith other eligible candidates falling within the same category.

With the aforesaid direction, this appeal is disposed of.