Judgment:
HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER
The applicant is the son of Late Shri Kunju Pillai, Ex-Administrative Officer, Income Tax Office, Alleppey, who died in harness on 01-08-2004. The said Kunjupillai had left behind his widow, a son and two daughters, of whom one had been married during the life time of the said Kunju Pillai. The applicant had applied for compassionate appointment on 14th October 2004 itself. Respondents had by communication dated 29.06.762006 rejected the case stating that there is limited number of vacancies earmarked for compassionate appointment. The letter reads as under:
"As per the Scheme for compassionate appointment, under the Central Govt., only 5% of the vacancies in the DR quota can be considered for compassionate appointment. As per DOPandT's O.M. No. 2/8/2001-PIC dated 16-05-2001, it is stated that direct recruitment would be limited to 1/3rd of the direct recruitment vacancies arising in the year subject to a further ceiling that this does not exceed 1% of the total sanctioned strength of the Department. Further the vacancies are to be cleared by the Screening Committee of the Central Board of Direct Taxes for making Direct Recruitment. Due to non availability of adequate vacancies, this office has not been able to make appointments as per the scheme for compassionate appointment. Owing to this, a number of applications for compassionate appointments are pending. Thus, due to non availability of adequate vacancies, it is regretted to inform you that your application for appointment in the I.T. Department, Kerala Region on compassionate appointment cannot be considered at present."
2. Challenging the above, the applicant had moved this Tribunal in OA No. 796/2007 which was disposed of by the Tribunal by its order dated 4th June, 2007, taking judicial notice of the statement of the respondents that the applicant's name is in the zone of consideration. Subsequent to the above, the respondents had called the applicants with necessary testimonials vide Annexure A-6 order dated 15th June 2007 and by Annexure A-7 order dated 27th June 2007 he was asked to appear in the eligibility test for the post of Tax Assistant. The applicant had taken the test but could not qualify and his case was then considered for the post of Notice Server and having found more meritorious persons, the respondents had expressed its inability grant the applicant any appointment on compassionate ground, vide the impugned order dated A1 and A-1(a). In A-1(a) the additional information is to the extent that since the period of retention of application for compassionate appointment exceeded the period of three years, the application would not be considered as per DOPandT's OM No. 14014/23/99-Estt (D) dated 05.05.2003 read with F. No. A 12012/16/2005-D.VII dated 16-06-2005.
3. The applicant has challenged the above impugned orders at Annexure A-1 and A-a(a).
4. Respondents have contested the O.A. They have stated that as per rules the case of the applicant had been considered but he could not be accommodated in view of the fact that he did not qualify in the eligibility test for the post of Tax Assistant and in respect of Notice Server, his name was in 7th rank, while the vacancy was only one.
5. The applicant has filed the rejoinder wherein he has contended that provision exists for relaxation of the rules for compassionate appointment and since the applicant could have a speed of 5449 key depressions which are more than the minimum of 5000 meant for promotion from feeder grade, he could have been accommodated against the post in relaxation of the rules. Again, that he had been shown as B.Com has also been indicated as one of the deficiencies in arriving at a decision.
6. Counsel for the applicant argued on the above lines while counsel for the respondents had reiterated their stand as in the counter. They had produced the relevant records also for perusal.
7. Arguments were heard and documents, including the official records perused. The records reflect the recommendation of the Committee as under:
"He passed M Com from the Kerala University in May 2000. His family now consists of besides himself, a younger sister, not married aged 26 year, and their mother. He has an elder sister who had been married before the death of the Govt. Servant. Himself has no regular source of income. The younger sister, an M.A. B. Ed., is now working in an unaided private school on a salary of Rs 1,200 p.m. The only source of income of the family is the family pension of Rs 11,556/- p.m. and the relevant bank pass book shows a balance of Rs 1,29,094/- only, maintained for the girl's marriage. The only property of the family is a house in 18 cents of land at Mangaram, Pandalam. It is stated that there is liability of Rs 10000/- to a local cooperative society and the personal loan of Rs 10,000/-. 8. Considering the poor financial condition of the family, the case is recommended."
8. On the basis of the above the applicant's case was considered. In so far as the vacancies are concerned, as per the respondents, for the first time in November 2006 when the vacancies were cleared for Direct recruitment for the period 2001-2, 2002-03 to 2005-06. Such vacancies in so far as Tax Assistant is concerned was reflected as 17 and for Notice server the number of vacancies was 6. It was for this reason that the vacancies under 5% quota was for compassionate appointment taken as one each. and, since the applicant did not qualify in the eligibility test for Direct Recruitment for Tax Assistant (for that matter none out of ten qualified, and the applicant had maximum key depressions of 5449 while others had done less only) no appointment was made on compassionate ground to that post. However, in respect of notice server, the applicant's order of preference was kept at 7 and hence he could not be selected for the same as well.
9. The question is whether 5% of the vacancy under direct Recruitment should be restricted to that under the optimization scheme or 5% of total number of direct recruitment vacancies. In its rejection order dated 29th June 2006, the respondents have clearly stated that they had worked out the vacancies for direct recruitment out of the vacancies cleared by the Screening Committee, which is one third of the total number of direct recruitment vacancies. However, clarification had been given by the Ministry of Personnel, Department of Personnel and Training, vide order dated 14th June 2006, which reads as under:-
"No. 14014/3/2005-Estt.(D)
Government of India
Ministry of Personnel, Public Grievances and Pension
Department of Personnel and Training
.......
New Delhi, dated the 14th June, 2006
Subject: Scheme for compassionate appointment under the Central Government - Determination of vacancies for. The undersigned is directed to say that the existing Scheme for Compassionate Appointment is contained in this Department's O.M. No. 14014/6/94-Estt.(D) dated the 9th October, 1998 as amended from time to time. Para 7 (b) of this O.M. provides that compassionate appointment can be made upto a maximum of 5% of vacancies under Direct Recruitment quota in any Group 'C' or 'D' post.
2. After coming into effect of DOPandT instructions No. 2/8/2001-PIC, dated the 15th May, 2001 on optimization of direct recruitment to civilian posts, the direct recruitment would be limited to 1/3rd of the direct recruitment vacancies arising in the year subject to a further ceiling that this does not exceed 1% of the total sanctioned strength of the Department. As a result of these instructions, there has been a continuous reduction in the number of vacancies for direct recruitment, consequently resulting in availability of very few vacancies or no vacancy under 5% quota for compassionate appointment. Because of this, the various Ministries have been facing difficulty in implementing the Scheme for Compassionate Appointment even in the most deserving cases.
3. On a demand raised by Staff Side in the Standing Committee of the National Council (JCM) for review of the compassionate appointment policy, the matter has been carefully examined and taking into account the fact that the reduction in the number of vacancies for compassionate appointment is being caused due to operation of the orders on optimization of Direct Recruitment vacancies, the following decisions have been taken:-
While the existing ceiling of 5% for compassionate appointment may not be modified but the 5% ceiling may be calculated on the basis of total direct recruitment vacancies for Group 'C' and 'D' posts (excluding technical posts) that have arisen in the year. Total vacancies available for making direct recruitment would be calculated by deducting the vacancies to be filled on the basis of compassionate appointment from the vacancies available for direct recruitment in terms of existing orders on optimization.
4. That instructions contained in the O.M. No. 14014/6/94 Estt.(D) dated 9th October, 1998, as amended from time to time stand modified to the extent mentioned above.
5. The above decision may be brought to the notice of all concerned for information, guidance and necessary action.
6. Hindi version will follow.
7. Sd/-
(Smita Kumar)
Director (E.I)"
10. The above order does not appear to have been taken into account while working the total number of vacancies that could be filled up under the compassionate appointment scheme.
11. Yet another aspect is about consideration for three years. Respondents have considered the case of the applicant only once and by that time the period of three years passed and hence included that also as a reason for rejection. This is inappropriate. The rules stipulate, "The maximum time a person's name can be kept under consideration for offering Compassionate appointment will be three years, subject to the condition that the prescribed Committee has reviewed and certified the penurious condition of the applicant at the end of the first and second year. After three years, if compassionate appointment is not possible to be offered to the applicant, his case will be finally closed and will not be considered again." (Emphasis supplied).
12. In the instant case, the applicant's case has been considered only once and on the ground that he could not make it through for Tax Assistant and that he is not No. 1 for the post of Notice Server his case has been rejected and quoting the three years' stipulation, his case stands closed once for all. This is unjustified for the two reasons as aforesaid viz. that vacancy ought to be at 5% of total number of direct recruitment vacancies without any truncation on account of optimization principle and secondly, the case of the applicant has to be considered for the second and third time.
13. In view of the above, the OA is disposed of with a direction to the respondents to work out the total number of vacancies in the grade of Tax Assistant as well as Notice Server for the past years keeping in view the provisions of the DOPT letter dated 14th June 2006 and consider the case of the applicants along with other eligible candidates and if the applicant makes it through he be given compassionate appointment and if not he be informed accordingly.
14. No time limit is specified as the matter involves re-working out of the vacancies and also to consider the other cases.
15. No costs.