SH. VIRENDER SINGH vs. SOUTH DELHI MUNICIPAL CORPORATION (SDMC) AND ORS.

$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9063/2018
SH. VIRENDER SINGH ..... Petitioner
Through Mr.Anuj Aggarwal, Adv. with
Mr.Kshitij Arora, Adv .


versus



SOUTH DELHI MUNICIPAL CORPORATION
(SDMC) AND ORS. ..... Respondents
Through Mr.Arun Birbal, Adv.

CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE REKHA PALLI
O R D E R
% 29.08.2018

1. The present petition has been filed by the petitioner assailing an
th
order dated 12 March, 2018, passed by the Central Administrative
Tribunal, Principal Bench, New Delhi, whereby OA No.2813/2015
filed by him seeking directions to the respondent/South Delhi
Municipal Corporation, to appoint him on a regular basis as a Safai
th
Karamchari w.e.f. 24 September, 2018, i.e., the date of his initial
engagement as a daily wager, along with consequential benefits, has
been rejected with a direction that the respondents shall consider the
petitioner’s case for regularization along with others as per his
seniority and as per the extant Rules and the Scheme, if any, in that

regard.
2. Mr.Aggarwal, learned counsel for the petitioner submits that
the petitioner’s father, an ex. Sanitation Superintendent, DEMS, had
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th
died in harness on 9 February, 1990 leaving behind a widow and
three sons. At the time of the demise of his father, the petitioner was
only 13 years of age and could not apply for appointment on
compassionate basis. However, the petitioner’s eldest brother, Shri
Bhagat Ram, who was 22 years of age at that point of time and
unemployed, did apply for appointment on compassionate basis but
nd
his case was rejected by the respondent/MCD on 2 May, 1991 on
the ground that he was already married. The petitioner attained
majority in the year 1995 but did not take any steps till March 2005 to
apply for appointment on compassionate grounds. It is the
petitioner’s case that though the respondent/MCD did appoint him as
th
a daily wage Safai Karamchari on humanitarian grounds on 24
September, 2008, he was actually entitled to a regular appointment on
compassionate grounds.
3. It is not in dispute that after his appointment as a daily wager in
the year 2008, the petitioner did not seek legal recourse regarding his
claim for regular appointment on compassionate grounds till the year
2015, when he finally filed the subject OA before the Tribunal.
Unimpressed by the submission made by learned counsel for the
petitioner to the effect that the petitioner is entitled for regular
th
appointment on compassionate grounds w.e.f. 24 September, 2008,
the Tribunal declined the said relief to the petitioner with the
following observation:-
“7. Firstly, the Scheme of compassionate
appointment is evolved to save the family in
destitution due to the sudden death of the bread
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earner. The Scheme is not meant for backdoor
appointments after long lapse of time of the death
of the employee. The applicant though became
major in the year 1995, has not chosen to make an
application till 2008 and when he was appointed
as Safai Karamchari on daily wages in the year
2008, again not chosen to question the same by
seeking regular appointment till 2015. Hence, he
cannot claim any regular appointment or
regularisation with effect from 24.09.2008.

8. Secondly, the decision in Shri Rajesh (supra)
has no application to the facts of the applicant’s
case since in that case the father of the applicant
(therein) was appointed on 31.03.2003. In the
present case making the application for
compassionate appointment itself has abnormally
been delayed and hence same cannot be made
applicable to the applicant’s case.”

4. However, having regard to the fact that the petitioner has been
working continuously with the respondent since the year 2008, as a
daily wage Safai Karamchari against an existing vacancy, the
Tribunal held that he is entitled for regularization in terms of the
extant Rules and Scheme of the respondent/SDMC. Aggrieved by the
said order, the present petition has been filed.
5. Learned counsel for the petitioner submits that the Tribunal
failed to appreciate that a compassionate appointment can only be
made on a regular and permanent basis and the respondent had erred
in initially appointing the petitioner as a Safai Karamchari on a daily
wage basis whereas he ought to have been appointed as a permanent
and regular Safar Karamchari from day one; that the Tribunal did not
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appreciate the fact that the petitioner’s father was a permanent
employee of the respondent and, therefore, he was entitled to
appointment on a regular basis on compassionate grounds as he
fulfils all the conditions of the Recruitment Rules for the post of Safai
Karamchari. Lastly, learned counsel for the petitioner alludes to the
th
Office Order dated 30 September, 2008, issued by the Municipal
Corporation to state that the petitioner was actually appointed on
compassionate ground againsts a vacant post.
6. Per contra, Mr.Birbal, learned counsel for the
respondent/SDMC who appears on advance notice, defends the
impugned judgment and submits that the petitioner’s plea that he was
initially appointed on a daily wage basis on compassionate grounds
itself is incorrect and since he was not appointed on compassionate
basis, there is no question of his seeking regularization on the ground
that appointment on compassionate grounds has to be on a regular
basis. Learned counsel categorically denies the Office Order dated
th
27 September, 2008 issued by the Municipal Corporation and relied
on by the otherside that stated that the petitioner had been appointed
as a Safai Karamchari on a daily wage basis on compassionate
grounds.
7. We have heard learned counsel for the parties and examined the
judgment in the light of the pleadings. On reading an extract of the
noting file of the department of the year 2005, enclosed with the
counter affidavit filed by the respondent/SDMC before the Tribunal,
it is clear that the petitioner was never considered for appointment on
compassionate basis. However, the matter was put up to the
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competent authority, to consider if the petitioner could be granted
some relief purely on humanitarian grounds. It is in view of the
th
aforesaid noting that the Office Order dated 24 September, 2008 was
issued appointing the petitioner as a Safai Karamchari on a daily
wage basis, on humanitarian grounds. Even though, his subsequent
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joining order dated 30 September, 2008 mentions that the petitioner
was allowed to join as a daily wager Safai Karamchari on
compassionate grounds, but that itself cannot be treated as an
appointment made on compassionate grounds as sought to be
contended by the learned counsel for the petitioner.
8. The scheme of compassionate appointment does not
contemplate appointment of a family member of a deceased employee
at any point in time. The said scheme is meant to provide immediate
succour, as a tide over to members of a deceased government
employee who would find themselves in a destitute state upon the
death of the sole bread earner. In this regard reference may be made
to the decision of the Apex Court in the case of Commissioner of
Public Instructions & Ors. V. K.R.Vishwanath [(2005) 7 SCC 206]
para 9 whereof reads as under:-
“9. As was observed in State of Haryana v. Rani
Devi [(1996) 5 SCC 308 : 1996 SCC (L&S) 1162 :
AIR 1996 SC 2445 ] , it need not be pointed out that
the claim of person concerned for appointment on
compassionate ground is based on the premises that he
was dependant on the deceased employee. Strictly this
claim cannot be upheld on the touchstone of Articles
14 or 16 of the Constitution. However, such claim is
considered as reasonable and permissible on the basis
of sudden crisis occurring in the family of such
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employee who has served the State and dies while in
service. That is why it is necessary for the authorities
to frame rules, regulations or to issue such
administrative orders which can stand the test of
Articles 14 and 16. Appointment on compassionate
ground cannot be claimed as a matter of right. Die-in-
harness scheme cannot be made applicable to all types
of posts irrespective of the nature of service rendered
by the deceased employee. In Rani Devi case [(1996) 5
SCC 308 : 1996 SCC (L&S) 1162 : AIR 1996 SC
2445] it was held that scheme regarding appointment
on compassionate ground if extended to all types of
casual or ad hoc employees including those who
worked as apprentices cannot be justified on
constitutional grounds. In LIC of India v. Asha
Ramchhandra Ambekar [(1994) 2 SCC 718 : 1994
SCC (L&S) 737 : (1994) 27 ATC 174] it was pointed
out that High Courts and Administrative Tribunals
cannot confer benediction impelled by sympathetic
considerations to make appointments on
compassionate grounds when the regulations framed in
respect thereof do not cover and contemplates such
appointments. It was noted in Umesh Kumar
Nagpalv. State of Haryana [(1994) 4 SCC 138 : 1994
SCC (L&S) 930 : (1994) 27 ATC 537] that as a rule
in public service appointment should be made strictly
on the basis of open invitation of applications and
merit. The appointment on compassionate ground is
not another source of recruitment but merely an
exception to the aforesaid requirement taking into
consideration the fact of the death of employee while in
service leaving his family without any means of
livelihood. In such cases the object is to enable the
family to get over sudden financial crisis. But such
appointments on compassionate ground have to be
made in accordance with the rules, regulations or
administrative instructions taking into consideration
the financial condition of the family of the deceased”
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9. Reference may also be made to the following observations of
the Supreme Court in the case of State of U.P. v. Paras Nath
[(1998)2 SCC 412]:-

10. In the light of the above principles, when we examine the facts
of the present case, we find that even if the petitioner was a minor on
the date of the demise of his father, admittedly, he had attained
majority in the year 1995, but still did not take any steps for over a
decade to approach the respondent and seek employment on
compassionate basis. Even the original application was filed by the
petitioner sometime in the year 2015, for claiming a relief that relates
back to the year 1995. That itself is sufficient ground to non-suit the
petitioner for a claim of appointment on compassionate grounds.
11. We, therefore, do not find any infirmity in the impugned order
that deserves interference in judicial review. In any event, the
Tribunal has directed the respondents to consider the petitioner’s case
for regularisation alongwith other similarly situated employees in
terms of his seniority and the extant Rules. Compliances in this
regard shall be made by the respondent in accordance with law,
within a reasonable period.

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12. The petition is dismissed along with the pending applications.


HIMA KOHLI, J



REKHA PALLI, J
AUGUST 29, 2018/aa


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