Judgment
K. Ramamoorthy, J.
1. The first petitioner is the widow of late Shri Shom Parkash Tiwari. The second petitioner is the eldest son of the first petitioner. The husband of the first petitioner died on 2.7.1989. He was working as a senior clerk with the second respondent (DESU) controlled by the first respondent. Setting out the condition of the family, the petitioners sought an appointment of the second petitioner on compassionate grounds as per the scheme of the respondents.
2. On 17.8.1989, an application was made for seeking appointment on compassionate grounds. Nothing was done on till 13.1.1993 a reminder was sent on 13.01.1993. On 24.3.1993 the Assistant Personnel Officer of the second respondent passed the following on 23.4.1993.
Sub: Regarding employment to your son Shri Mukesh Kumar Tiwari on compassionate grounds.
Madam,
With reference to your letter dated 13.1.1993 on the above subject, I am directed to inform you that as per information obtained from Asstt. Chief Accountant (Pension), per month pension amount being received by you from March, 1992 is Rs. 1,359/-. This amount is in excess of maximum limit of Rs. 1,100/- per month fixed for family income (including Family Pension) in the Undertaking as per prevailing procedure. thereforee, the case of employment to Shri Tiwari on compassionate grounds cannot be submitted before the Screening Committee.
3. Subsequently on 20.7.1993, the respondents sought some clarification from the petitioners and on 16.9.1993 the reply was sent. Annexure P-7 is the Office Memorandum dated 25.11.1978 contained instructions referring to the compassionate grounds. Inasmuch as the petitioner did not receive any reply to the reminder dated 13.1.1993 the petitioners had approached this Court.
4. The first petitioner has five sons and two daughters. The daughters are married and they are living with their husbands. Two sons are married and other two sons remained unmarried. Since they have not been able to secure any employment on permanent basis except the pension that is received on account of the death of the husband of the first petitioner, there has been no tangible sources of income to the petitioners. They have not been able to make the both ends meet and thereforee, the petitioners were obliged to approach this Court seeking relief.
5. The respondents have filed the counter affidavit. The stand taken by them is that there was a policy on the date of death of the husband of the first petitioner. According to which the petitioner would not be entitled to the relief as prayed for. The policy was subsequently changed with effect from 31.7.1989.
6. As per the previous policy if the family receiving Rs. 1,110/- per month inclusive of family pension the family would not be entitled to appointment on compassionate grounds. Now as per the new policy this criterion was revised and it was decided that the family getting Rs. 1,100/- per month excluding family pension would be considered for appointment. This criterion was applicable to the family of employee dying on or after 31.7.1989.
7. The learned Counsel for the respondents submitted that the Screening Committee had considered the case of the petitioner and in para 5 of the counter the following stand is taken:
In reply to para 5, it is submitted that the petitioner was informed about the decision of the Screening Committee which was convened for consideration of the cases for appointment on compassionate grounds. The petitioner's case was rejected being not covered under the policy of the undertaking. The petitioner was in receipt of family pension of Rs. 1,359/- per month which is in excess of the limit of Rs.1,100/- per month prescribed for consideration of the cases for providing employment on compassionate grounds in cases where the death had occurred before 31.7.1989.
8. The learned Counsel for the respondents also refer to para 3 of the rejoinder filed by the petitioner wherein it is stated:
In rejoinder to para 3 of the counter affidavit, it is submitted that the contents thereof are wrong and as such denied and the averments made in the corresponding para of the petition are reiterated. It is denied that one of the brothers is in regular employment. In fact all the sons of the deceased are doing odd jobs and working as casual labourers and there is no one in the family having regular employment as per the Circular of DESU.
9. Here the argument is that the family is not without any income and stated that the family is not in impecunious circumstances entitling to consideration on compassionate grounds. The learned Counsel for the respondents also refers to para 10 of the writ petition wherein the petitioner had stated the stand of the respondents is that some income is received by the family and the sons are getting some salary through some source. thereforee, it is not the case where the petitioners could claim compassionate appointment. The learned Counsel for the respondents referred to the judgment of the Supreme Court reported in Haryana State Electricity Board Vs . Naresh Tanwar and Anr. etc. etc., : (1996)ILLJ1066SC and Umesh Kumar Nagpal Vs . State of Haryana & Ors., : [1994]3SCR893 .
10. Having regard to the facts and circumstances of this case the only material point which has to be considered is whether the petitioner could be denied compassionate appointment on the basis that the first petitioners husband died on 2.7.1989 and the policy which came into force with effect from 31.7.1989 could be applied. The claim was made by the petitioner on 17.8.1989. This is not case where applicability of any statute is involved and the respondents proceeded on the basis if the petitioners are claiming retroactive operation of the statute. On the date when the application was made the revised policy had come into force, thereforee, I am of the view that the respondents have been taking two technical stands that the view of the Screen Committee that the petitioner No. 2 has not covered under the policy and the undertaking as on the date of the death of the husband of the first petitioner, this view cannot be sustained. The point is whether the petitioner has made out a case for appointment on compassionate grounds. The respondents have not been effectively contravent the position. The sons of the first petitioner are not working and they do not seem to be qualified for any permanent employment. I am satisfied that the petitioner has made out a case for employment on compassionate grounds.
11. In Umesh Kumar Nagpal Vs . State of Haryana & Ors, : [1994]3SCR893 the Supreme Court had categorically laid down the principles and those principles have to be followed by the respondents. In para 2 of the judgment the Supreme Court had said:
'The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly in the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favor of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such, employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provisions of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts of Class-III and IV are the lowest posts in non manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to the achieved, viz, relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favor of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.'
12. In the light of this legal position, I am clearly of the view that the petitioners are entitled to the relief as prayed for in the writ petition and the respondents shall consider the case of the second petitioner in an appropriate category and appoint him having regard to his qualification and fitness on or before 31.3.1998.
13. Accordingly, the writ petition is allowed. There shall be no order as to costs.