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2014 DIGILAW 1042 (GUJ)

Babusinh Udaji Makwana v. Union Of India

2014-09-22

R.P.DHOLARIA, V.M.SAHAI

body2014
JUDGMENT : R.P. Dholaria, J. This Special Civil Application under Articles 226 and 227 of the Constitution of India is filed by the petitioner herein being aggrieved by the order passed by the learned Central Administrative Tribunal in Original Application No.28 of 2012, whereby the learned Tribunal has been pleased to dismiss the original application of the present petitioner wherein relief of compassionate appointment was sought. 2. The brief facts of the case may be stated as follows: 2.1. That the father of the petitioner was working as a Postmaster, Lodra Post Office in Gandhinagar Division. He died on 03.11.1993 while in service. The deceased had left behind his widow, four daughters and two sons including the petitioner. At the time of the death of the petitioner's father, the present petitioner was minor and after attaining the age of majority, he had applied for appointment on compassionate ground. The case of the present petitioner was placed before the Circle Relaxation Committee (C.R.C. for short) on 24.04.2004. The C.R.C., after taking into consideration the criteria fixed for dealing with such applications did not recommend the case of present petitioner for compassionate appointment. Again, the petitioner made a representation on 16.04.2007 seeking compensation appointment. The said request of the petitioner was again considered in the meeting held on 24.12.2008 and his request was turned down and he was intimated vide letter dated 06.01.2009 that amongst all the cases received for recommendation, 28 most deserving cases have been recommended and the remaining cases, including the case of the petitioner, were not recommended as not found deserving compared to the recommended cases. Again, the petitioner made a representation vide his letter dated 15.03.2009 for reconsideration of earlier decision which was rejected on 27.08.2009. 2.2. Being aggrieved by the aforesaid decision, the petitioner approached the learned Central Administrative Tribunal by way of preferring Original Application No.337 of 2009. The learned Tribunal, after hearing the respective parties was pleased to direct the respondents to reconsider the case of the petitioner vide its order dated 26.02.2010. 2.3. Being aggrieved by the aforesaid order of the learned Tribunal, the respondent herein preferred a writ petition being Special Civil Application No.10089 of 2010 before this Court. The Division Bench of this Court, vide order dated 30.12.2010, dismissed the said petition. 2.4. 2.3. Being aggrieved by the aforesaid order of the learned Tribunal, the respondent herein preferred a writ petition being Special Civil Application No.10089 of 2010 before this Court. The Division Bench of this Court, vide order dated 30.12.2010, dismissed the said petition. 2.4. In consequence of the aforesaid orders passed by the learned Tribunal as well as this Court, the C.R.C. reconsidered the case of the present petitioner but did not recommend the case of the present petitioner for compassionate appointment. Thereafter, on 04.11.2011 the present petitioner made a representation which also came to be dismissed by the Chief Post Master General vide order dated 22.11.2011. 2.5. Being aggrieved by non-appointment on the compassionate ground, the petitioner again preferred Original Application No.28 of 2012 before the learned Tribunal challenging the orders dated 15.09.2011, 26.09.2011 and 22.11.2011. The learned Tribunal, vide order dated 17.04.2012 was pleased to dismiss the original application of the petitioner inter alia holding that the respondents had complied with the provisions/directions and had made an objective assessment of suitability of present petitioner in comparison with the other cases for compassionate appointment. 3. Precisely, the aforesaid order dated 17.04.2012 which came to be passed by the learned Central Administrative Tribunal is under challenge before this Court by way of preferring present Special Civil Application, inter alia, contending that the order passed by the learned Tribunal is non-speaking, inasmuch as it has not dealt with the contentions raised before it. That the learned Tribunal failed to consider that the respondent has not properly dealt with the provisions of policy prevailing for granting the compassionate appointment. That the authority failed to consider the proper assessment of the case of the present petitioner in comparison with other similarly situated persons. 4. We have heard Mr. A. L. Sharma, learned advocate for the petitioner and Ms. R. V. Acharya, learned advocate for the respondents. 5. We have perused the impugned order passed by the learned Central Administrative Tribunal as well as materials available on the record. It is pertinent to note that this is the second round of litigation. 4. We have heard Mr. A. L. Sharma, learned advocate for the petitioner and Ms. R. V. Acharya, learned advocate for the respondents. 5. We have perused the impugned order passed by the learned Central Administrative Tribunal as well as materials available on the record. It is pertinent to note that this is the second round of litigation. The material on record clearly reveals that while considering the case of the present petitioner for his appointment on compassionate ground along with the cases of other similarly situated persons, the C.R.C. took a decision not to recommend the case of the present petitioner based on a system of allocation of points to various attributes based on a hundred point-scale as indicated in the scheme for compassionate appointment. It also reveals from the record that a comparative chart in a tabular format containing the name of the person sought compassionate appointment; parent's name and post held; date of death of the Govt. Servant; amount of terminal benefits received; value of movable/immovable property; income from other source and number of members, is drawn. On the basis of that assessment chart, the names were arranged merit-wise (penurious conditions of the family of a deceased employee). It also appears from the record that while considering the case of the petitioner for the first time in the year 2004, his case was not found meritorious as compared to other similarly situated persons and therefore his case for compassionate appointment was not recommended by the C.R.C. It also appears from the record that thereafter in pursuance of the orders of learned Tribunal as well as this Court, again, the case of the present petitioner was considered by the C.R.C. on 24.08.2011. The learned Central Administrative Tribunal has clearly observed that as per the chart Annexure-R2, as per the recommendations of C.R.C., the present petitioner had secured total 73 points, whereas, the persons whose cases were recommended by the C.R.C. had secured 96, 88, 87 and 78 points and present petitioner's name was placed at serial No.6 in the rank and only four vacancies were available and therefore the cases of first four candidates who had secured more points than the present petitioner were recommended by the C.R.C. It also appears that the same procedure was also adopted previously in the year 2004 while considering the case of the present petitioner for his appointment on compassionate ground and his case was not found fit to be recommended and consequently his case could not be recommended. 6. It has also brought to our notice by learned advocate Ms. R. V. Acharya that the Government of India has made a comprehensive and objective scheme for compassionate appointment - relative merit points and procedure for selection. Ms. Acharya has submitted that considering the criteria as well as the assessment of each case, the case of the present petitioner is assessed based upon the aforesaid criteria only and that was also made available to the learned Tribunal and the learned Tribunal has also dealt with the same in its impugned order and therefore this Court, while exercising writ jurisdiction, should not interfere with the order passed by the learned Tribunal. Ms. Acharya has also drawn our attention to the office memorandum dated 5th May 2003 issued by the Government of India in Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, whereby the Government has fixed the time limit for making compassionate appointment. Ms. Acharya has also drawn our attention to the office memorandum dated 5th May 2003 issued by the Government of India in Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, whereby the Government has fixed the time limit for making compassionate appointment. On perusal of the aforesaid office memorandum, it clearly provides that if compassionate appointment to genuine and deserving cases, as per the guidelines contained in the office memorandums dated 9th October 1998 and 3rd December 1993, is not possible in the first year, due to non-availability of regularly vacancy, the prescribed Committee may review such cases to evaluate the financial conditions of the family to arrive at a decision as to whether a particular case warrants extension by one more year and the maximum time a person's name can be kept under consideration for offering compassionate appointment will be three years and that too subject to the condition that the prescribed Committee has to review and certify the penurious condition of the applicant at the end of the first and the 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. 7. In view of the above legal position, the case of the present petitioner appears to be peculiar one as the father of the present petitioner died in harness in the year 1993 and he was minor at the relevant time and consequently he could not apply for the compassionate appointment till the year 2004 i.e. for about 11 years. It appears that when the petitioner preferred the application for his appointment on compassionate ground on attaining the age of majority, the prescribed Committee considered his case on merits based on the system of allocation of points to various attributes based on a hundred point-scale as indicated in the table provided in the scheme dated 20.01.2010, which is at page 176 of present petition. As per the chart annexed at page 180 of this petition, it clearly transpires that the name of the present petitioner is placed at serial No.6 and he secured 73 point, whereas the first four candidates whose cases have been recommended by the C.R.C. secured 96, 88, 87 and 78 points respectively and there were only four posts vacant. As per the chart annexed at page 180 of this petition, it clearly transpires that the name of the present petitioner is placed at serial No.6 and he secured 73 point, whereas the first four candidates whose cases have been recommended by the C.R.C. secured 96, 88, 87 and 78 points respectively and there were only four posts vacant. Therefore, the case of the present petitioner was not recommended by the C.R.C. It appears from the record that in the year 2004 his case was not recommended by the C.R.C. and therefore he could not be appointed in the year 2004 and again the case of the petitioner was considered by the C.R.C. but the case of the present petitioner was not recommended in the year 2008 also. In pursuance of the direction of the Central Administrative Tribunal as well as this High Court, the case of the petitioner was considered by the C.R.C. on 24.08.2011 and as the petitioner secured only 73 points and there were more meritorious persons who had secured more points than the petitioner and only four vacant posts available, the persons who had secured more points than the present petitioners were appointed. 8. In our scrutiny, factually the case of the present petitioner had been considered thrice by the C.R.C. and as the petitioner did not secure the points for compassionate appointment as compared to other similarly situated compassionate appointment seekers, his case had not been recommended by the C.R.C for appointment. Furthermore, the criteria for considering such cases is laid down by the Government of India in very comprehensive and objective manner, therefore the contention as regard to non-inclusion of the name of the present petitioner in the list of compassionate appointment by not properly dealing with the case of the petitioner by the C.R.C. cannot be contended as strict criteria is applied in all such cases in a transparent manner. The present petitioner has also got three chances for assessing and reviewing his case and unfortunately he could not stand on merit point-wise so that he could be appointed on the available vacant post. 9. The compassionate appointment is not a regular mode of appointment or recruitment to a particular post and one cannot claim it as a matter of right. 9. The compassionate appointment is not a regular mode of appointment or recruitment to a particular post and one cannot claim it as a matter of right. This is definitely deviated from regular procedure of appointment as envisaged in the public employment and came into picture upon the death of an employee while in service by putting his/her family in a penurious condition. Indisputably, the father of the petitioner died in the year 1993 and the application for compassionate appointment came to be made by the petitioner in the year 2004 on attaining the age of majority i.e. after about 11 years from the death of the petitioner's father. Not only that, but thereafter also due to representation and pendency of litigation, as on today, almost 21 years have been passed by and therefore the object of the scheme, which is meant to provide immediate assistance to the family members of a deceased employee by way of offering employment on compassionate ground, is somewhat not fulfilled in present case on account of efflux of time. 10. Furthermore, we have also perused the impugned order passed by the learned Tribunal and we are of the opinion that the learned Tribunal has examined the case of the present petitioner in a very objective manner and we do not find any error apparent on the face of the record and appears to be eminently just requiring no interference by this Court in exercise of its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. In the result, the petition deserves to be dismissed and is accordingly dismissed. Rule is discharged. Petition dismissed.