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Smt. Jyoti Chaturvedi v. Union Of India & Another - WRIT - A No. 19044 of 1997  RD-AH 12588 (31 July 2006)
Civil Misc. Writ Petition No. 19044 of 1997
Smt. Jyoti Chaturvedi
Union of India & Anr.
Hon. Dilip Gupta, J.
This petition has been filed by a widow of Sri Vinod Kumar Chaturvedi, an employee in the Air Force who died on 15th April, 1991, for a direction upon the respondents to provide a suitable service to the petitioner according to the qualifications possessed by her.
The petition was initially allowed by this Court by means of the judgment and order dated 30th May, 1997 and a direction was issued that the petitioner was entitled to get an appointment against a Class III post in Kanpur. A Special Appeal was filed in this Court against the aforesaid order. This was disposed of with a slight modification by directing that instead of posting of her at Kanpur, the authority shall decide the place of posting. Feeling aggrieved by the aforesaid judgment, the Union of India preferred a Special Leave Petition in the Supreme Court which was allowed by means of the judgment and order dated 23rd August, 2005. The operative part of the judgment is quoted below :-
"We are surprised that the writ petition and the special appeal were disposed of in such a casual fashion. There was not even discussions as to the acceptability of the claim and/or objections raised by the appellants about the non entitlement of the respondent under the ''Dying in Harness' Scheme. In the absence of reasons, it becomes impossible to know as to what had weighed with the High Court in accepting the prayer made in the writ petition.
The respondent's case was considered for the final time in the quarter ending December, 1992. On this occasion, out of 81 applicants, again 9 vacancies were to be filled by compassionate appointment including two dependents of ex-servicemen. The two persons who were given compassionate appointment in this category had per capita monthly income of Rs. 275/- and Rs. 370/- respectively. Of all the 9 persons offered compassionate employment at this time, the per capita monthly income ranged from 82/- to Rs. 370/-.
In the facts and circumstances aforesaid, the appellants submitted that the case of the respondent had been duly considered by them for compassionate employment. It would be evident from the above that respondent's per capita family income was far in excess of those who have been offered compassionate employment on each of the three occasions on which she has been considered. The purpose of compassionate employment being to assist the most needy families, the appellants submitted that the denial of compassionate appointment to the respondent is valid and in conformity with the relevant rules. The appellants submitted that the High Court has erred in interfering with the appellant's decision in this respect and particularly in passing a mandatory order directing the petitioners to give compassionate employment to the respondent herein. They to quote the immortal words of Lord Summer in Rex v. Nat Bell Liguors Ltd. (1922) AC 128 "speak only with the inscrutable face of Sphinx". As noted in Union of India & Ors. Vs. M/s. Essel Mining & Industries Limited & Anr. 2005 (6) SCALE 608, the High Court's orders are "unspeaking order" as classically desired by Lord Cairns IC in Overseas of the poor of Walsal Overseas v. London & NWR Co. (1879) 4 AC 30. The above position was highlighted in State of Punjab Vs. Bhag Singh 2004 (1) SCC 547 and State of Orissa Vs. Dhaniram Luhar JT 2004 (2) SC 172.
In this view of the matter, we set aside the order of the learned Single Judge and Division Bench and remit the matter to the High Court for a fresh consideration of the Writ Petition No. 19044/1997. Since the matter is pending for nearly eight years, the High Court is requested to dispose of the matter as early as practicable preferably before the end of 2005.
The appeal is allowed to the aforesaid extent. No costs."
After the aforesaid judgment of the Supreme Court, the respondents have filed a detailed counter affidavit to which a rejoinder affidavit has also been filed. The petitioner thereafter filed a supplementary affidavit to which a supplementary counter affidavit has also been filed.
In the counter affidavit filed to the main writ petition, it has been stated that compassionate appointments are given on the basis of the office memorandum dated 30th June, 1987 issued by the Government of India and as the case of the petitioner did not fall within the parameters stipulated in the aforesaid office memorandum, compassionate appointment was not given to her. The respondents have also mentioned the terminal benefits awarded to the petitioner which are as follows :-
"(a) Family Pension : Rs. 700/- PM initially which has been revised Rs. 1275/- + admissible DA per month at present.
(b) DCRG : Rs. 16,800/-
(c) AFFP/GPF : Rs. 9,214/-
(d) GIS/DLIS : Rs. 1,61,110/- and again Rs.6,387/-
(e) Assistance from IAFBA :
(I) Death Grant - Rs.6,000/-
(II) Rehabilitation Grant
(i) Rs. 450/-PM from Apr 91 to Mar 97 - Rs.32,400/-
(ii) Rs.1,000/-PM from Apr 97 to Mar 98 - Rs.12,000/-
(iii) Rs.1,050/-PM from Apr 98 to Mar 99 - Rs.12,600/-
(iv) Rs.1,100/-PM from Apr 99 to Mar 2000- Rs.13,200/-
(v) Rs.1,150/-PM from Apr 2000 to Mar 03- Rs.41,400/-
(vi) Rs.1,000/-PM from Apr 03 to Feb 06 - Rs.35,000/-
Total - Rs.1,52,600/-"
In the counter affidavit it has also been stated that as only 5% of the total number of vacancies are reversed for compassionate appointment, it is given to the most deserving candidates who are selected on the basis of the per capita income. In the case of the petitioner it was worked out to Rs.932/-, which was much higher than the candidates who had been selected for compassionate appointments. It has also been stated that the case of the petitioner was considered four times and the details are as follows :-
"(a) The case of the petitioner was first considered in June '92 at which time, as against 57 applicants only 9 vacancies were available, out of which only 2 were for dependents of service personnel. The two persons who were appointed were found to have per capita monthly income of Rs. 215/- and Rs. 235/- respectively. The per capita monthly income of the nine appointees from all categories ranged from Rs. 163/- to Rs. 454/-.
(b) The case of the petitioner was again considered in the quarter ending Sept '92. Out of the 57 applicants only 9 vacancies were to be filled by compassionate appointment including 3 dependents of service personnel. The three dependents of service personnel who were offered appointment had a per capita monthly income of Rs. 151/-, Rs. 483/- and Rs. 528/- respectively. Of the total nine persons who were offered compassionate appointment in all the categories, the per capita monthly income ranged from Rs. 151/- to Rs. 528/-.
(c) The case of the petitioner was considered for the third time in the quarter ending Dec '92. On this occasion out of 81 applicants, 9 vacancies were to be filled by compassionate appointment including 2 dependents of service personnel. The two persons given appointment in this category had per capita monthly income of Rs. 275/- and Rs. 370/- respectively. Of all the nine persons offered compassionate appointment, the per capita monthly income ranged from Rs. 82 to Rs. 370/-.
(d) Thereafter the case of the petitioner was considered for the fourth time in May '94 when the Ministry of Defence had allowed one time relaxation of appointments on compassionate grounds against vacancies reserved for ex-servicemen and physically handicapped persons. A total of 437 applicants were considered against 198 vacancies. However there being cases of applicants more deserving than the petitioner, she could not be given compassionate appointment under the one time relaxation also. The merit point of the persons who were given compassionate appointment in the category of ex-servicemen through the one time relaxation board held in May 1994 ranged from 57 to 67 as against 48 of the petitioner.................."
The petitioner has also filed a supplementary affidavit and in paragraph 11 of the supplementary affidavit, the petitioner has given instances where compassionate appointments were given to the dependents of deceased employees even in those cases where the retiral benefits that had been awarded were between Rs. 4 to 7 lacs. A supplementary counter affidavit has been filed by the respondents pointing out that all the cases referred to in paragraph 11 of the Supplementary affidavit except one were not for the period when the case of the petitioner was considered for compassionate appointment and, therefore, had no relevance. In respect of one person namely Smt. Urmila Mishra whose name figured at Serial No. 3, it has been stated that the per capita income was Rs. 151/- as against Rs. 932/- of the petitioner.
Learned counsel for the petitioner laid much emphasis on the averments made in paragraph 11 of the supplementary affidavit in support of his contention that the petitioner should have been offered compassionate appointment and vehemently urged that the respondents have practiced discrimination inasmuch as those persons who had received much higher amount of post retiral benefits than the petitioner had been offered compassionate appointment. He, therefore, submitted that the stand taken by the respondents that as the per capita income of the petitioner was higher than those who had been appointed is incorrect.
Sri Ashok Singh, learned counsel for the respondents has, however, submitted that the death of the petitioner's husband occurred in April, 1991 and soon thereafter the case of the petitioner was considered in the year 1992 on three occasions but as the per capita income of the petitioner was higher than those who had been appointed, it was not possible to grant any appointment to the petitioner. He further submitted that the averments made in paragraph 11 of the supplementary affidavit had been duly replied by the respondents and from the same, it would be apparent that no discrimination has been practiced.
I have carefully considered the submissions advanced by the learned counsel for the parties.
It is not disputed that only 5% of the total number of vacancies are reserved for compassionate appointment. In such circumstances the authorities have to work out a method by which the most deserving candidates are offered compassionate appointment and this has been done by determining the per capita income in accordance with the notifications issued from time to time. The case of the petitioner for compassionate appointment was considered thrice in the year 1992. To be specific it was considered in June, 1992, then in the quarter ending September, 1992 and third time in the quarter ending December, 1992 but each time the number of vacancies meant to be filed up by compassionate appointment were filled up by those candidates whose per capita income was less than that of the petitioner. The authorities had also considered the case of the petitioner for the fourth time in May 1994 but this time also the petitioner was not selected. These facts have not been denied by the petitioner and all that he contends is that the respondents have practiced discrimination. This contention of the learned counsel for the petitioner about discrimination cannot be accepted in view of the specific averments made in the supplementary counter affidavit that these cases related to a period subsequent to the period when the case of the petitioner was considered except the case of one Smt. Urmila Mishra whose per capita income was less than that of the petitioner. There is, therefore, no merit in the contention of the learned counsel for the petitioner about discrimination.
It must also be noticed that in the writ petition, the petitioner has not mentioned anywhere that her case was earlier considered thrice by the Department in the year 1992 and once in the year 1994. All that has been stated in the writ petition is that the petitioner filed a representation in the year 1996 which was rejected by the order dated 19th June, 1996. Though a copy of the order dated 19th June, 1996 was annexed along with the writ petition but the petitioner did not seek the quashing of this order or any of the orders passed earlier by the respondents. Thus, also no relief can be granted to the petitioner as the only relief that has been sought is for providing appointment on compassionate ground has been sought without seeking the quashing of any of the orders rejecting her claim. This apart, the petitioner's husband had died in the year 1992 and her case was rejected thrice. The writ petition was filed only in the year 1997 after a considerable delay. Compassionate appointment is claimed for providing immediate relief, but in the instance case the petitioner filed the writ petition in the year 1997.
For all the reasons stated above, there is no merit in the writ petition. It is, accordingly dismissed.
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