As
already noticed above, appointment on compassionate ground under the
OM dated 5.5.2003 is permissible within three years of the death of the
bread winner in harness. By now, sixteen years have passed by, and as
such, there can be no surviving claim for compassionate appointment.
16. Courts and Tribunals should not fall prey to any sympathy
syndrome, so as to issue directions for compassionate appointments,
without reference to the prescribed norms. Courts are not supposed to
carry Santa Claus’s big bag on Christmas eve, to disburse the gift of
compassionate appointment, to all those who seek a court’s intervention.
Courts and Tribunals must understand, that every such act of sympathy,
compassion and discretion, wherein directions are issued for appointment
on compassionate ground, could deprive a really needy family requiring
financial support, and thereby, push into penury a truly indigent, destitute
and impoverish family. Discretion is therefore ruled out. So are,
misplaced sympathy and compassion.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8635 OF 2012
(Arising out Special Leave Petition (Civil) No. 25985 of 2012)
The Chief Commissioner,
Central Excise and Customs, Lucknow & Ors. …Appellants
Versus
Prabhat Singh …Respondent
1. Leave granted.
2. Vijay Bahadur Singh, who was working as a sepoy in the Central
Excise and Customs Department and was posted in the Customs Division
at Varanasi, died in harness on 2.3.1996. His son Prabhat Singh applied
for appointment on compassionate ground. It seems, that he could not be
appointed as such, because there was no vacancy available to
accommodate him. His application therefore remained pending.
3. Having waited long enough, Prabhat Singh filed Original Application
no. 1459 of 2005 before the Central Administrative Tribunal, Allahabad
Bench, Allahabad (hereinafter referred to as the “CAT-Allahabad Bench”).
In his Original Application, Prabhat Singh prayed for a direction to the
respondents to appoint him on compassionate grounds, since his father
Vijay Bahadur Singh had died in harness. The CAT-Allahabad BenchPage 2
disposed of the application filed by Prabhat Singh on 8.12.2005 with a
direction to the Commissioner, Central Excise, Allahabad to take a
decision on the representation filed by Prabhat Singh seeking appointment
on compassionate ground within three months.
4. In compliance with the directions issued by the CAT-Allahabad
Bench dated 8.12.2005, the Commissioner, Central Excise, Allahabad,
adjudicated upon the claim of Prabhat Singh (for appointment on
compassionate ground), by an order dated 5.1.2006. A perusal of the
aforesaid order inter alia reveals, that the policy instructions pertaining to
appointment on compassionate ground envisage, that such appointments
can be made only up to a maximum of 5% vacancies, arising under the
direct recruitment quota (in any group “C” or group “D” posts). It also
emerges from the order dated 5.1.2006, that the Ministry of Finance, vide
its letter dated 19.7.2001, restrained the authorities from, filling up any
vacancies passed the order dated 22.5.2008 (referred to in the foregoing paragraph),
yet the appellants chose to assail the order passed by the CAT-Lucknow
Bench dated 14.3.2008 (disposing of O.A. no.468 of 2006). The appellants
accordingly, preferred Miscellaneous Writ Petition no.33452 of 2008 in the
High Court of Judicature at Allahabad (hereinafter referred to as “the High
Court”) to assail the order passed by the CAT-Lucknow Bench, dated
14.3.2008, wherein the directions had been issued to the appellants to reconsider the claim of Prabhat Singh, for appointment on compassionate
grounds against the post of Tax Assistant.
8. The High Court disposed of the aforesaid miscellaneous writ petition
vide order dated 9.8.2011. The operative part of the order passed by the
High Court is being extracted hereunder:-
“Looking into this fact that now the post of Tax Assistant is to
be filled up by way of promotion, the order of Tribunal is
modified to the extent that the case of respondent no.1 shall
now be considered by the petitioner in the grade of Tax
Assistant or any other post falling in the quota of direct
recruitment. The respondent no.1 shall be given appointment
either in the department where his father was working or in
any other department of Government of India, expeditiously,
but not later than six months from the date of receipt of a
certified copy of the order of this Court.
With the aforesaid directions the writ petition is disposed of.”
The aforesaid directions issued by the High Court have been assailed,
through the instant Special Leave Petition.
9. A perusal of the impugned order passed by the High Court reveals
that the High Court expressly noticed the fact, that in the order of the
Commissioner, Central Excise, Allahabad, dated 5.1.2006, the ground on
which the claim of Prabhat Singh for appointment on compassionate
ground was declined, was expressed as non-availability of any vacancy,
by way of direct recruitment. In compliance therewith, the
department had not made any appointment by way of direct recruitment
since December, 2000. Accordingly, in the absence of appointment
against direct recruitment vacancies, no compassionate appointment could
have been made. This therefore constituted one of the reasons for not
appointing Prabhat Singh on compassionate ground. The order passed by
the Commissioner, Central Excise, Allahabad further reveals, that the
erstwhile cadres of Lower Divisional Clerks and Upper Divisional Clerks
had been abolished. The existing Lower Divisional Clerks and Upper
Divisional Clerks were merged into a newly created cadre of Tax
Assistants. In so far as the post of Tax Assistant is concerned, the
minimum prescribed qualification, for appointment by way of direct
recruitment thereto, was graduation. Prabhat Singh could not be
appointed on compassionate ground, against the post of Tax Assistant as
he possessed the qualification of intermediate, which is lower than the
minimum prescribed qualification. For the reasons summarized
hereinabove, the claim of Prabhat Singh for appointment on
compassionate ground was rejected by the order of the Commissioner,
Central Excise, Allahabad dated 5.1.2006.
5. Dissatisfied with the order dated 5.1.2006, Prabhat Singh
approached the Central Administrative Tribunal, Lucknow Bench, Lucknow
(hereinafter referred to as “the CAT- Lucknow Bench”), by filing Original
Application no.468 of 2006. The instant Original Application filed by
Prabhat Singh was disposed of by CAT-Lucknow Bench by an order dated
14.03.2008, with the direction, that the claim of Prabhat Singh for
appointment on compassionate ground be re-considered against the post
of Tax Assistant. While issuing the aforesaid direction, it was clarified,
that the earlier order dated 5.1.2006 would not be taken into consideration,
to the detriment of the applicant-Prabhat Singh.
6. In compliance with the directions issued by the CAT-Lucknow Bench
dated 14.3.2008, the Additional Commissioner, (P&V), Central Excise,
Allahabad, re-considered the claim of Prabhat Singh for appointment on
compassionate ground. It would be relevant to mention, that at the time of
the instant consideration, an Office Memorandum issued by the
Department of Personnel and Training dated 5.5.2003 (hereinafter referred
to as “the O.M. dated 5.5.2003”) was taken into consideration. The O.M.
dated 5.5.2003, spells out the policy, as also, the terms and conditions for
appointment on compassionate ground. A perusal of the order dated
22.5.2008 passed on reconsidering the claim of Prabhat Singh (for
appointment on compassionate ground) reveals, that the O.M. dated
5.5.2003 inter alia expressly provided, that appointment of a dependant
family member on compassionate ground, was permissible only within
three years of the death of the bread-winner in harness. The aforesaid
order dated 22.5.2008, also noticed, that a Review Committee constituted
for the purpose of making appointments on compassionate ground, had reconsidered all pending matters on 21.09.2007. The Review Committee
had excluded the name of Prabhat Singh (and all other candidates like
him) from consideration, because more than three years expired after the
death of his father (on 2.3.1996). Apart from the reason expressed above,
in the order dated 22.5.2008, it was noticed that there was no available
vacancy in the cadre of Tax Assistant. It was pointed out, that the cadre
controlling authority had not released any further vacancy of Tax Assistant,
which could be filled up by direct recruitment. Accordingly, due to non
availability of any direct recruitment vacancy, in the cadre of Tax
Assistant, the claim of Prabhat Singh for such appointment, was held to be
not made out. For the reasons summarized hereinabove, the claim of
Prabhat Singh, for appointment on compassionate ground, was again
rejected.
7. Even though the appellant in compliance with the directions issued
by the CAT-Lucknow Bench, dated 14.3.2008, re-examined the claim of
Prabhat Singh for appointment on compassionate ground, and accordingly,
passed the order dated 22.5.2008 (referred to in the foregoing paragraph),
yet the appellants chose to assail the order passed by the CAT-Lucknow
Bench dated 14.3.2008 (disposing of O.A. no.468 of 2006). The appellants
accordingly, preferred Miscellaneous Writ Petition no.33452 of 2008 in the
High Court of Judicature at Allahabad (hereinafter referred to as “the High
Court”) to assail the order passed by the CAT-Lucknow Bench, dated
14.3.2008, wherein the directions had been issued to the appellants to reconsider the claim of Prabhat Singh, for appointment on compassionate
grounds against the post of Tax Assistant.
8. The High Court disposed of the aforesaid miscellaneous writ petition
vide order dated 9.8.2011. The operative part of the order passed by the
High Court is being extracted hereunder:-
“Looking into this fact that now the post of Tax Assistant is to
be filled up by way of promotion, the order of Tribunal is
modified to the extent that the case of respondent no.1 shall
now be considered by the petitioner in the grade of Tax
Assistant or any other post falling in the quota of direct
recruitment. The respondent no.1 shall be given appointment
either in the department where his father was working or in
any other department of Government of India, expeditiously,
but not later than six months from the date of receipt of a
certified copy of the order of this Court.
With the aforesaid directions the writ petition is disposed of.”
The aforesaid directions issued by the High Court have been assailed,
through the instant Special Leave Petition.
9. A perusal of the impugned order passed by the High Court reveals
that the High Court expressly noticed the fact, that in the order of the
Commissioner, Central Excise, Allahabad, dated 5.1.2006, the ground on
which the claim of Prabhat Singh for appointment on compassionate
ground was declined, was expressed as non-availability of any vacancy,
because of creation of the new cadre of Tax Assistant (and the merger of
the posts of Lower Division Clerk and Upper Division Clerk in the said
cadre). The Commissioner, Central Excise, consequent upon the abolition
of posts of Lower Division Clerk and Upper Division Clerk declined the
claim of Prabhat Singh for appointment against the post of Tax Assistant
on compassionate ground, for the reasons that he did not possess the
qualification of graduation, which was the prescribed educational
qualification, for appointment by way of direct recruitment, against the post
of Tax Assistant. The claim of Prabhat Singh, having been so considered,
the High Court could not have passed the ultimate direction requiring the
appellants herein, to yet again consider the claim of Prabhat Singh for
appointment against the post of Tax Assistant or against any other
equivalent post in the same grade.
10. Whether or not the claim of Prabhat Singh for appointment on
compassionate ground could be considered, in terms of directions issued
by the High Court, would truly depend on the OM dated 5.5.2003 which
laid down the policy, as also, the terms and conditions of eligibility for
appointment as such. It is evident from the narration of facts noticed
above, that the appellants while considering the claim of Prabhat Singh for
appointment on compassionate ground (consequent upon directions
issued by the CAT-Allahabad Bench and CAT-Lucknow Bench) vide
orders dated 5.1.2006 and 22.5.2008, clearly expressed, that there was no
direct recruitment vacancy available, to consider the candidature of
Prabhat Singh, for appointment on compassionate ground. In the
background of the aforesaid factual position, there was hardly any
justification for the High Court to have passed the directions extracted
above.
11. It would also be pertinent to mention, that the High Court, in the
impugned order dated 9.8.2011, also took notice of the fact, that the
Ministry of Finance vide its order dated 19.7.2001, had prohibited the
appellants from filling up any further vacancies by way of direct
recruitment. In the orders passed by the appellants herein, it was
categorically noticed, that no vacancies by way of direct recruitment were
actually filled up after December, 2000. Since the OM dated 5.5.2003 laid
down a quota of 5%, for appointment on compassionate ground, out of
vacancies filled up by direct recruitment, the question of appointment on
compassionate ground could have arisen, only if the appellants had
proceeded to make appointments by way of direct recruitment. Since it is
not a matter of dispute before us, that no appointment by way of direct
recruitment was made by the appellants after December, 2000, it clearly
emerges that the quota contemplated in the OM dated 5.5.2003 for
appointment on compassionate ground had not become available.
Therefore, the question of appointment of Prabhat Singh at the hands of
the appellants on compassionate ground, did not arise at all.
12. The High Court expressed, that ban at the hands of Finance
Department would not affect appointment on compassionate ground, the
said determination, in our view, was rendered without taking into
consideration the fact, that the quota of 5% would arise only when
appointments by direct recruitment were actually made. Out of vacancies
filled up by way of direct recruitment, 5% could then be earmarked towardscompassionate appointment under the OM dated 5.5.2003. Since no
direct recruitment was made by the appellants after December, 2000,
clearly no vacancy had became available for appointment on
compassionate ground, with effect from December, 2000. The direction
issued by the High Court dated 9.8.2011, requiring the appellants to
consider the case of Prabhat Singh for appointment on compassionate
ground, was without reference to the OM dated 5.5.2003, wherein the
policy, and terms and conditions for appointment on compassionate
ground, were laid down.
13. Most importantly, the High Court did not take into consideration one
of the most significant reasons depicted in the orders passed by the
appellants (dated 5.1.2006 and 22.5.2008), namely, that under the OM
dated 5.5.2003 appointment on compassionate ground was permissible
within a period of three years from the date of death of the concerned
employee in harness. Vijay Bahadur Singh, the father of Prabhat Singh
had died on 2.3.1996. The candidature of Prabhat Singh, for appointment
on compassionate ground, under the OM dated 5.5.2003 could have been
considered only till 1.3.1999. Thereafter, Prabhat Singh was rendered
ineligible for appointment on compassionate ground. Pointedly, on
aforesaid ground the Review Committee constituted by the appellants to
consider the claims of dependents of employees who had died in harness,
vide an order dated 21.9.2007, had excluded the names of persons
including Prabhat Singh, from the list of pending cases for appointment on
compassionate ground, because they could no longer be appointed on
compassionate ground, since more than three years had expired after the
8Page 9
death of the concerned bread winner in harness. Had the High Court or
the Tribunals applied their mind to the aforesaid pre-condition for eligibility
for appointment on compassionate ground, none of the directions issued
by the High Court or the Tribunals would have been issued. Such
directions could have been issued only when the party approaching the
Tribunal or the High Court had established a prima facie case, by
demonstrating fulfillment of the terms and conditions stipulated in
rules/regulations/policy instructions/office memoranda, relevant for such
consideration. Had the aforesaid simple exercise been carried out, it
would not have been necessary to examine the matter again and again. In
the instant case, on a simple issue of compassionate appointment, there
have been repeated rounds of litigation, the first time before the CATAllahabad Bench, then before the CAT-Lucknow Bench, and thereafter,
before the High Court. From the High Court the matter has now been
carried to this Court. If only the pre-requisite eligibility of Prabhat Singh for
appointment on compassionate ground had been examined, it would not
have been necessary to examine the matter again, and yet again. The
instant observations have been recorded only to demonstrate how judicial
time at different levels has been wasted by entertaining a frivolous
litigation. Surely, because Prabhat Singh had approached a judicial forum
nine years after the death of his father, whereas, appointment on
compassionate ground is permissible only within three years of the death
of the bread winner, the matter deserved to have been rejected at the
stage of first entertainment.14. We are constrained to record that even compassionate
appointments are regulated by norms. Where such norms have been laid
down, the same have to be strictly followed. Where claims for appointment
on compassionate ground, exceed, the available vacancies (which can be
filled up by way of compassionate appointment), a selection process has to
be adopted by the competent authority. The said process, necessarily has
to be fair, and based on a comparative compassion gradient of eligible
candidates, or on some such like criterion having a nexus to the object
sought to be achieved. In other words, where there are two candidates but
only one vacancy is available, there should be a clear, transparent and
objective criterion to determine which of the two should be chosen. In the
absence of a prescribed criteria, a fair selection process has to be
followed, so that, the exercise carried out in choosing one of the two
candidates against a solitary available vacancy, can be shown to be based
on reason, fair-play and non arbitrariness.
15. The very object of making provision for appointment on
compassionate ground, is to provide succor to a family dependent on a
government employee, who has unfortunately died in harness. On such
death, the family suddenly finds itself in dire straits, on account of the
absence of its sole bread winner. Delay in seeking such a claim, is an
ante thesis, for the purpose for which compassionate appointment was
conceived. Delay in raising such a claim, is contradictory to the object
sought to be achieved. The instant controversy reveals that even though
Vijay Bahadur Singh, the father of the applicant (Prabhat Singh) seeking
appointment on compassionate ground had died on 2.3.1996, Prabhat
Singh sought judicial redress, for the first time, by approaching the CAT Allahabad Bench in 2005. By such time, there was no surviving right for
appointment on compassionate ground under the OM dated 5.5.2003. As
already noticed above, appointment on compassionate ground under the
OM dated 5.5.2003 is permissible within three years of the death of the
bread winner in harness. By now, sixteen years have passed by, and as
such, there can be no surviving claim for compassionate appointment.
16. Courts and Tribunals should not fall prey to any sympathy
syndrome, so as to issue directions for compassionate appointments,
without reference to the prescribed norms. Courts are not supposed to
carry Santa Claus’s big bag on Christmas eve, to disburse the gift of
compassionate appointment, to all those who seek a court’s intervention.
Courts and Tribunals must understand, that every such act of sympathy,
compassion and discretion, wherein directions are issued for appointment
on compassionate ground, could deprive a really needy family requiring
financial support, and thereby, push into penury a truly indigent, destitute
and impoverish family. Discretion is therefore ruled out. So are,
misplaced sympathy and compassion.
17. For the reasons recorded hereinabove, the impugned order passed
by the High Court dated 9.8.2011, directing the appellants to appoint
Prabhat Singh on compassionate ground, against a post in the grade of
Tax Assistant or any other post falling in the quota of direct recruitment, is
liable to be set aside. The same is accordingly hereby set aside.18. The instant appeal is accordingly allowed.
..………………………..J.
(Dr. B.S. Chauhan)
..…..……………………J.
(Jagdish Singh Khehar)
New Delhi,
November 30, 2012
Print Page
already noticed above, appointment on compassionate ground under the
OM dated 5.5.2003 is permissible within three years of the death of the
bread winner in harness. By now, sixteen years have passed by, and as
such, there can be no surviving claim for compassionate appointment.
16. Courts and Tribunals should not fall prey to any sympathy
syndrome, so as to issue directions for compassionate appointments,
without reference to the prescribed norms. Courts are not supposed to
carry Santa Claus’s big bag on Christmas eve, to disburse the gift of
compassionate appointment, to all those who seek a court’s intervention.
Courts and Tribunals must understand, that every such act of sympathy,
compassion and discretion, wherein directions are issued for appointment
on compassionate ground, could deprive a really needy family requiring
financial support, and thereby, push into penury a truly indigent, destitute
and impoverish family. Discretion is therefore ruled out. So are,
misplaced sympathy and compassion.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8635 OF 2012
(Arising out Special Leave Petition (Civil) No. 25985 of 2012)
The Chief Commissioner,
Central Excise and Customs, Lucknow & Ors. …Appellants
Versus
Prabhat Singh …Respondent
1. Leave granted.
2. Vijay Bahadur Singh, who was working as a sepoy in the Central
Excise and Customs Department and was posted in the Customs Division
at Varanasi, died in harness on 2.3.1996. His son Prabhat Singh applied
for appointment on compassionate ground. It seems, that he could not be
appointed as such, because there was no vacancy available to
accommodate him. His application therefore remained pending.
3. Having waited long enough, Prabhat Singh filed Original Application
no. 1459 of 2005 before the Central Administrative Tribunal, Allahabad
Bench, Allahabad (hereinafter referred to as the “CAT-Allahabad Bench”).
In his Original Application, Prabhat Singh prayed for a direction to the
respondents to appoint him on compassionate grounds, since his father
Vijay Bahadur Singh had died in harness. The CAT-Allahabad BenchPage 2
disposed of the application filed by Prabhat Singh on 8.12.2005 with a
direction to the Commissioner, Central Excise, Allahabad to take a
decision on the representation filed by Prabhat Singh seeking appointment
on compassionate ground within three months.
4. In compliance with the directions issued by the CAT-Allahabad
Bench dated 8.12.2005, the Commissioner, Central Excise, Allahabad,
adjudicated upon the claim of Prabhat Singh (for appointment on
compassionate ground), by an order dated 5.1.2006. A perusal of the
aforesaid order inter alia reveals, that the policy instructions pertaining to
appointment on compassionate ground envisage, that such appointments
can be made only up to a maximum of 5% vacancies, arising under the
direct recruitment quota (in any group “C” or group “D” posts). It also
emerges from the order dated 5.1.2006, that the Ministry of Finance, vide
its letter dated 19.7.2001, restrained the authorities from, filling up any
vacancies passed the order dated 22.5.2008 (referred to in the foregoing paragraph),
yet the appellants chose to assail the order passed by the CAT-Lucknow
Bench dated 14.3.2008 (disposing of O.A. no.468 of 2006). The appellants
accordingly, preferred Miscellaneous Writ Petition no.33452 of 2008 in the
High Court of Judicature at Allahabad (hereinafter referred to as “the High
Court”) to assail the order passed by the CAT-Lucknow Bench, dated
14.3.2008, wherein the directions had been issued to the appellants to reconsider the claim of Prabhat Singh, for appointment on compassionate
grounds against the post of Tax Assistant.
8. The High Court disposed of the aforesaid miscellaneous writ petition
vide order dated 9.8.2011. The operative part of the order passed by the
High Court is being extracted hereunder:-
“Looking into this fact that now the post of Tax Assistant is to
be filled up by way of promotion, the order of Tribunal is
modified to the extent that the case of respondent no.1 shall
now be considered by the petitioner in the grade of Tax
Assistant or any other post falling in the quota of direct
recruitment. The respondent no.1 shall be given appointment
either in the department where his father was working or in
any other department of Government of India, expeditiously,
but not later than six months from the date of receipt of a
certified copy of the order of this Court.
With the aforesaid directions the writ petition is disposed of.”
The aforesaid directions issued by the High Court have been assailed,
through the instant Special Leave Petition.
9. A perusal of the impugned order passed by the High Court reveals
that the High Court expressly noticed the fact, that in the order of the
Commissioner, Central Excise, Allahabad, dated 5.1.2006, the ground on
which the claim of Prabhat Singh for appointment on compassionate
ground was declined, was expressed as non-availability of any vacancy,
by way of direct recruitment. In compliance therewith, the
department had not made any appointment by way of direct recruitment
since December, 2000. Accordingly, in the absence of appointment
against direct recruitment vacancies, no compassionate appointment could
have been made. This therefore constituted one of the reasons for not
appointing Prabhat Singh on compassionate ground. The order passed by
the Commissioner, Central Excise, Allahabad further reveals, that the
erstwhile cadres of Lower Divisional Clerks and Upper Divisional Clerks
had been abolished. The existing Lower Divisional Clerks and Upper
Divisional Clerks were merged into a newly created cadre of Tax
Assistants. In so far as the post of Tax Assistant is concerned, the
minimum prescribed qualification, for appointment by way of direct
recruitment thereto, was graduation. Prabhat Singh could not be
appointed on compassionate ground, against the post of Tax Assistant as
he possessed the qualification of intermediate, which is lower than the
minimum prescribed qualification. For the reasons summarized
hereinabove, the claim of Prabhat Singh for appointment on
compassionate ground was rejected by the order of the Commissioner,
Central Excise, Allahabad dated 5.1.2006.
5. Dissatisfied with the order dated 5.1.2006, Prabhat Singh
approached the Central Administrative Tribunal, Lucknow Bench, Lucknow
(hereinafter referred to as “the CAT- Lucknow Bench”), by filing Original
Application no.468 of 2006. The instant Original Application filed by
Prabhat Singh was disposed of by CAT-Lucknow Bench by an order dated
14.03.2008, with the direction, that the claim of Prabhat Singh for
appointment on compassionate ground be re-considered against the post
of Tax Assistant. While issuing the aforesaid direction, it was clarified,
that the earlier order dated 5.1.2006 would not be taken into consideration,
to the detriment of the applicant-Prabhat Singh.
6. In compliance with the directions issued by the CAT-Lucknow Bench
dated 14.3.2008, the Additional Commissioner, (P&V), Central Excise,
Allahabad, re-considered the claim of Prabhat Singh for appointment on
compassionate ground. It would be relevant to mention, that at the time of
the instant consideration, an Office Memorandum issued by the
Department of Personnel and Training dated 5.5.2003 (hereinafter referred
to as “the O.M. dated 5.5.2003”) was taken into consideration. The O.M.
dated 5.5.2003, spells out the policy, as also, the terms and conditions for
appointment on compassionate ground. A perusal of the order dated
22.5.2008 passed on reconsidering the claim of Prabhat Singh (for
appointment on compassionate ground) reveals, that the O.M. dated
5.5.2003 inter alia expressly provided, that appointment of a dependant
family member on compassionate ground, was permissible only within
three years of the death of the bread-winner in harness. The aforesaid
order dated 22.5.2008, also noticed, that a Review Committee constituted
for the purpose of making appointments on compassionate ground, had reconsidered all pending matters on 21.09.2007. The Review Committee
had excluded the name of Prabhat Singh (and all other candidates like
him) from consideration, because more than three years expired after the
death of his father (on 2.3.1996). Apart from the reason expressed above,
in the order dated 22.5.2008, it was noticed that there was no available
vacancy in the cadre of Tax Assistant. It was pointed out, that the cadre
controlling authority had not released any further vacancy of Tax Assistant,
which could be filled up by direct recruitment. Accordingly, due to non
availability of any direct recruitment vacancy, in the cadre of Tax
Assistant, the claim of Prabhat Singh for such appointment, was held to be
not made out. For the reasons summarized hereinabove, the claim of
Prabhat Singh, for appointment on compassionate ground, was again
rejected.
7. Even though the appellant in compliance with the directions issued
by the CAT-Lucknow Bench, dated 14.3.2008, re-examined the claim of
Prabhat Singh for appointment on compassionate ground, and accordingly,
passed the order dated 22.5.2008 (referred to in the foregoing paragraph),
yet the appellants chose to assail the order passed by the CAT-Lucknow
Bench dated 14.3.2008 (disposing of O.A. no.468 of 2006). The appellants
accordingly, preferred Miscellaneous Writ Petition no.33452 of 2008 in the
High Court of Judicature at Allahabad (hereinafter referred to as “the High
Court”) to assail the order passed by the CAT-Lucknow Bench, dated
14.3.2008, wherein the directions had been issued to the appellants to reconsider the claim of Prabhat Singh, for appointment on compassionate
grounds against the post of Tax Assistant.
8. The High Court disposed of the aforesaid miscellaneous writ petition
vide order dated 9.8.2011. The operative part of the order passed by the
High Court is being extracted hereunder:-
“Looking into this fact that now the post of Tax Assistant is to
be filled up by way of promotion, the order of Tribunal is
modified to the extent that the case of respondent no.1 shall
now be considered by the petitioner in the grade of Tax
Assistant or any other post falling in the quota of direct
recruitment. The respondent no.1 shall be given appointment
either in the department where his father was working or in
any other department of Government of India, expeditiously,
but not later than six months from the date of receipt of a
certified copy of the order of this Court.
With the aforesaid directions the writ petition is disposed of.”
The aforesaid directions issued by the High Court have been assailed,
through the instant Special Leave Petition.
9. A perusal of the impugned order passed by the High Court reveals
that the High Court expressly noticed the fact, that in the order of the
Commissioner, Central Excise, Allahabad, dated 5.1.2006, the ground on
which the claim of Prabhat Singh for appointment on compassionate
ground was declined, was expressed as non-availability of any vacancy,
because of creation of the new cadre of Tax Assistant (and the merger of
the posts of Lower Division Clerk and Upper Division Clerk in the said
cadre). The Commissioner, Central Excise, consequent upon the abolition
of posts of Lower Division Clerk and Upper Division Clerk declined the
claim of Prabhat Singh for appointment against the post of Tax Assistant
on compassionate ground, for the reasons that he did not possess the
qualification of graduation, which was the prescribed educational
qualification, for appointment by way of direct recruitment, against the post
of Tax Assistant. The claim of Prabhat Singh, having been so considered,
the High Court could not have passed the ultimate direction requiring the
appellants herein, to yet again consider the claim of Prabhat Singh for
appointment against the post of Tax Assistant or against any other
equivalent post in the same grade.
10. Whether or not the claim of Prabhat Singh for appointment on
compassionate ground could be considered, in terms of directions issued
by the High Court, would truly depend on the OM dated 5.5.2003 which
laid down the policy, as also, the terms and conditions of eligibility for
appointment as such. It is evident from the narration of facts noticed
above, that the appellants while considering the claim of Prabhat Singh for
appointment on compassionate ground (consequent upon directions
issued by the CAT-Allahabad Bench and CAT-Lucknow Bench) vide
orders dated 5.1.2006 and 22.5.2008, clearly expressed, that there was no
direct recruitment vacancy available, to consider the candidature of
Prabhat Singh, for appointment on compassionate ground. In the
background of the aforesaid factual position, there was hardly any
justification for the High Court to have passed the directions extracted
above.
11. It would also be pertinent to mention, that the High Court, in the
impugned order dated 9.8.2011, also took notice of the fact, that the
Ministry of Finance vide its order dated 19.7.2001, had prohibited the
appellants from filling up any further vacancies by way of direct
recruitment. In the orders passed by the appellants herein, it was
categorically noticed, that no vacancies by way of direct recruitment were
actually filled up after December, 2000. Since the OM dated 5.5.2003 laid
down a quota of 5%, for appointment on compassionate ground, out of
vacancies filled up by direct recruitment, the question of appointment on
compassionate ground could have arisen, only if the appellants had
proceeded to make appointments by way of direct recruitment. Since it is
not a matter of dispute before us, that no appointment by way of direct
recruitment was made by the appellants after December, 2000, it clearly
emerges that the quota contemplated in the OM dated 5.5.2003 for
appointment on compassionate ground had not become available.
Therefore, the question of appointment of Prabhat Singh at the hands of
the appellants on compassionate ground, did not arise at all.
12. The High Court expressed, that ban at the hands of Finance
Department would not affect appointment on compassionate ground, the
said determination, in our view, was rendered without taking into
consideration the fact, that the quota of 5% would arise only when
appointments by direct recruitment were actually made. Out of vacancies
filled up by way of direct recruitment, 5% could then be earmarked towardscompassionate appointment under the OM dated 5.5.2003. Since no
direct recruitment was made by the appellants after December, 2000,
clearly no vacancy had became available for appointment on
compassionate ground, with effect from December, 2000. The direction
issued by the High Court dated 9.8.2011, requiring the appellants to
consider the case of Prabhat Singh for appointment on compassionate
ground, was without reference to the OM dated 5.5.2003, wherein the
policy, and terms and conditions for appointment on compassionate
ground, were laid down.
13. Most importantly, the High Court did not take into consideration one
of the most significant reasons depicted in the orders passed by the
appellants (dated 5.1.2006 and 22.5.2008), namely, that under the OM
dated 5.5.2003 appointment on compassionate ground was permissible
within a period of three years from the date of death of the concerned
employee in harness. Vijay Bahadur Singh, the father of Prabhat Singh
had died on 2.3.1996. The candidature of Prabhat Singh, for appointment
on compassionate ground, under the OM dated 5.5.2003 could have been
considered only till 1.3.1999. Thereafter, Prabhat Singh was rendered
ineligible for appointment on compassionate ground. Pointedly, on
aforesaid ground the Review Committee constituted by the appellants to
consider the claims of dependents of employees who had died in harness,
vide an order dated 21.9.2007, had excluded the names of persons
including Prabhat Singh, from the list of pending cases for appointment on
compassionate ground, because they could no longer be appointed on
compassionate ground, since more than three years had expired after the
8Page 9
death of the concerned bread winner in harness. Had the High Court or
the Tribunals applied their mind to the aforesaid pre-condition for eligibility
for appointment on compassionate ground, none of the directions issued
by the High Court or the Tribunals would have been issued. Such
directions could have been issued only when the party approaching the
Tribunal or the High Court had established a prima facie case, by
demonstrating fulfillment of the terms and conditions stipulated in
rules/regulations/policy instructions/office memoranda, relevant for such
consideration. Had the aforesaid simple exercise been carried out, it
would not have been necessary to examine the matter again and again. In
the instant case, on a simple issue of compassionate appointment, there
have been repeated rounds of litigation, the first time before the CATAllahabad Bench, then before the CAT-Lucknow Bench, and thereafter,
before the High Court. From the High Court the matter has now been
carried to this Court. If only the pre-requisite eligibility of Prabhat Singh for
appointment on compassionate ground had been examined, it would not
have been necessary to examine the matter again, and yet again. The
instant observations have been recorded only to demonstrate how judicial
time at different levels has been wasted by entertaining a frivolous
litigation. Surely, because Prabhat Singh had approached a judicial forum
nine years after the death of his father, whereas, appointment on
compassionate ground is permissible only within three years of the death
of the bread winner, the matter deserved to have been rejected at the
stage of first entertainment.14. We are constrained to record that even compassionate
appointments are regulated by norms. Where such norms have been laid
down, the same have to be strictly followed. Where claims for appointment
on compassionate ground, exceed, the available vacancies (which can be
filled up by way of compassionate appointment), a selection process has to
be adopted by the competent authority. The said process, necessarily has
to be fair, and based on a comparative compassion gradient of eligible
candidates, or on some such like criterion having a nexus to the object
sought to be achieved. In other words, where there are two candidates but
only one vacancy is available, there should be a clear, transparent and
objective criterion to determine which of the two should be chosen. In the
absence of a prescribed criteria, a fair selection process has to be
followed, so that, the exercise carried out in choosing one of the two
candidates against a solitary available vacancy, can be shown to be based
on reason, fair-play and non arbitrariness.
15. The very object of making provision for appointment on
compassionate ground, is to provide succor to a family dependent on a
government employee, who has unfortunately died in harness. On such
death, the family suddenly finds itself in dire straits, on account of the
absence of its sole bread winner. Delay in seeking such a claim, is an
ante thesis, for the purpose for which compassionate appointment was
conceived. Delay in raising such a claim, is contradictory to the object
sought to be achieved. The instant controversy reveals that even though
Vijay Bahadur Singh, the father of the applicant (Prabhat Singh) seeking
appointment on compassionate ground had died on 2.3.1996, Prabhat
Singh sought judicial redress, for the first time, by approaching the CAT Allahabad Bench in 2005. By such time, there was no surviving right for
appointment on compassionate ground under the OM dated 5.5.2003. As
already noticed above, appointment on compassionate ground under the
OM dated 5.5.2003 is permissible within three years of the death of the
bread winner in harness. By now, sixteen years have passed by, and as
such, there can be no surviving claim for compassionate appointment.
16. Courts and Tribunals should not fall prey to any sympathy
syndrome, so as to issue directions for compassionate appointments,
without reference to the prescribed norms. Courts are not supposed to
carry Santa Claus’s big bag on Christmas eve, to disburse the gift of
compassionate appointment, to all those who seek a court’s intervention.
Courts and Tribunals must understand, that every such act of sympathy,
compassion and discretion, wherein directions are issued for appointment
on compassionate ground, could deprive a really needy family requiring
financial support, and thereby, push into penury a truly indigent, destitute
and impoverish family. Discretion is therefore ruled out. So are,
misplaced sympathy and compassion.
17. For the reasons recorded hereinabove, the impugned order passed
by the High Court dated 9.8.2011, directing the appellants to appoint
Prabhat Singh on compassionate ground, against a post in the grade of
Tax Assistant or any other post falling in the quota of direct recruitment, is
liable to be set aside. The same is accordingly hereby set aside.18. The instant appeal is accordingly allowed.
..………………………..J.
(Dr. B.S. Chauhan)
..…..……………………J.
(Jagdish Singh Khehar)
New Delhi,
November 30, 2012
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