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2017 DIGILAW 216 (JK)

Satya Devi v. Union of India

2017-04-28

ALOK ARADHE

body2017
JUDGMENT : 1. With the consent of the learned counsel for the parties, the matter is heard finally. 2. In this petition, petitioner inter alia seeks quashment of communication dated 06.08.2010 by which the claim of the petitioner for appointment on compassionate ground has been rejected. The petitioner also seeks writ of mandamus directing the respondents to appoint the petitioner on compassionate grounds with retrospective effect. 3. The facts giving rise to the filing of this writ petition briefly stated are that the husband of the petitioner was employed as Mazdoor, in Military Engineering Service in the year 1979, who died on 17.05.2003. The petitioner thereupon submitted an application on 19.06.2003 seeking appointment on compassionate basis. However, the case of the petitioner was considered by the Board in its meeting held in the months of September, 2004, December, 2004, March, 2005 and June, 2005. Vide communication dated 07.11.2005, the claim of the petitioner for appointment on compassionate basis was rejected. 4. The aforesaid order was challenged by the petitioner in OWP No. 13/2006. In the said writ petition, a Bench of this Court, inter alia, held that the impugned communication dated 07.11.2005 suffers from the vice of non-application of mind inasmuch as no cogent reasons have been assigned for rejecting the claim of the petitioner for appointment on compassionate ground. Accordingly, the impugned order was quashed. The Respondents were directed to consider the claim of the petitioner for her appointment on compassionate grounds afresh by a speaking order. Thereafter by an order dated 06.08.2010, the claim of the petitioner has been rejected. In the aforesaid factual background the petitioner has approached this Court. 5. Learned counsel for the petitioner submitted that in the objections filed in OWP No. 13/2006 the respondents had taken a stand that there were more deserving candidates and there were fewer vacancies, therefore, petitioner could not be given appointment. However, in the objections filed in the instant writ petition, the stand taken by the respondents that no vacancy at all was available at the time when the case of the petitioner was considered, as a result of which she could not be appointed on compassionate basis. However, in the objections filed in the instant writ petition, the stand taken by the respondents that no vacancy at all was available at the time when the case of the petitioner was considered, as a result of which she could not be appointed on compassionate basis. Learned counsel for the petitioner has also invited the attention of this Court to Annexure-R4 annexed with the objections Filed by the respondents and has pointed out that the respondents should have reviewed the penurious condition of the petitioner at the end of the first and the second year and thereafter only the case of the petitioner could have been closed for compassionate appointment. In the instant case, the case of the petitioner was considered four times within a span of one year, in contravention of office memorandum dated 05.05.2003. In support of the aforesaid submissions, the learned counsel for the petitioner has placed reliance on the decisions of the Supreme Court in cases Smt. Sushma Gosain & Ors. v. Union of India & Ors., 1989 AIR (SC) 1976; Smt. Phoolwati v. Union of India & Ors., 1991 AIR (SC) 469 and Canara Bank & Anr. v. M. Mahesh Kumar, 2015 AIR (SCW) 3212. 6. On the other hand, learned Assistant Solicitor General of India has produced the record for perusal of this Court and has submitted that from perusal of the record, it is evident that the petitioner could not be appointed on compassionate basis in the absence of clear vacancy. It is also submitted that none of the candidates has been appointed during the relevant period on compassionate basis, therefore, no case is made out in favour of the petitioner. In response to the office memorandum dated 05.05.2003, the learned Assistant Solicitor General of India has submitted that the aforesaid memorandum deals with time limit for making appointment on compassion-ate grounds. From perusal of the aforesaid office memorandum, it is evident that it is an enabling provision and does not confer any right on the petitioner. In support of the aforesaid submissions, learned Assistant Solicitor General of India has referred to decision of the Supreme Court in the case of 2010 (5) JKJ 234 [SC] State of J&K & Ors. v. Sajad Ahmed Mir, (2006) 5 Supreme Court Cases 766. 7. I have considered the rival submissions made at the Bar and have perused the record. In support of the aforesaid submissions, learned Assistant Solicitor General of India has referred to decision of the Supreme Court in the case of 2010 (5) JKJ 234 [SC] State of J&K & Ors. v. Sajad Ahmed Mir, (2006) 5 Supreme Court Cases 766. 7. I have considered the rival submissions made at the Bar and have perused the record. It is well settled in law that compassionate appointment being an exception to the general rule of appointment can only strictly be made in accordance with the terms of the policy. See: State of Haryana v. Naresh Kumar Bali, (1994) 4 SCC 448 ; State Bank of India & Anr. v. Somvir Singh, (2007) 4 SCC 778 and State Bank of India & Anr. v. Raj Kumar, (2010) 11 SCC 661 . It is equally well settled legal proposition that specially constituted Committees have to deal with the issues like compassionate appointment and normally the Court should not interfere with the decision taken by such Committee. Reference in this regard is made to the decision of the Supreme Court, Union Bank of India & Ors., v. M.T. Latheesh, (2006) 7 SCC 350 . The objective of providing compassionate appointment is to enable the family to get over the sudden financial crisis and not to confer a status on the family. Appointment on compassionate basis is made by taking into account the financial condition of the family of the deceased. See Union of India & Anr., v. Shashank Goswami & Anr., AIR 2012 SC 2294 . In the backdrop of aforesaid well settled legal proposition, the facts of the case in hand may be seen. 8. In the instant case, admittedly, the husband of the petitioner expired on 17.05.2003. As per the policy, the case for grant of appointment on compassionate basis is decided on the basis of criteria, such as size of the family, including age of children, amount of terminal benefits, amount of family pension, liability in terms of unmarried daughters, number of minor children, immovable and movable property and left over service as well as number of dependents. It is not being disputed that an amount of Rs. 1,77,321/- was disbursed as terminal benefits. The family of the deceased was in receipt of monthly pension of Rs. 1275/- plus Dearness Allowance prior to the implementation of 6th Pay Commission and now revised to Rs. 3500/- P.M. 9. It is not being disputed that an amount of Rs. 1,77,321/- was disbursed as terminal benefits. The family of the deceased was in receipt of monthly pension of Rs. 1275/- plus Dearness Allowance prior to the implementation of 6th Pay Commission and now revised to Rs. 3500/- P.M. 9. From the perusal of the record as well as impugned order dated 06.08.2010, it is evident that the appointment to the petitioner on compassionate basis could not be given in the absence of any clear vacancy. From the perusal of the record, it is further evident that nobody including the petitioner has been given appointment on compassionate basis in the absence of clear vacancy. So far as the submission made by the learned counsel for the petitioner that there is inconsistency in the stands taken by the respondents in the preliminary objections filed in OWP No. 13/2006 and in the present writ petition, the same fails as insignificant. From the perusal of the original record, which is produced in the Court, it is evident that nobody has been given appointment on compassionate basis as there was no clear vacancy. So far as the submissions that as per the office memorandum dated 05.05.2003, the respondents were under obligation to consider the penurious condition of the petitioner at the end of the first and the second year is concerned, from the close scrutiny of the aforesaid clause, which is reproduced below for facility of reference, it is evident that the same is only an enabling provision: "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 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." 10. The office memorandum dated 05.05.2003 deals with time limit for making compassionate appointment and provide that after three years, if compassionate appointment is not possible to be offered to the petitioner/applicant, his/her case will be finally closed. The office memorandum dated 05.05.2003 deals with time limit for making compassionate appointment and provide that after three years, if compassionate appointment is not possible to be offered to the petitioner/applicant, his/her case will be finally closed. In the instant case, the case of the petitioner was considered beyond the period of three years presumably in view of the direction issued by a Bench of this Court in the previous round of litigation. Therefore, the submission of the learned counsel for the petitioner that the respondents have considered the case of the petitioner four times in a short span of time in violation of office memorandum dated 05.05.2003 does not deserve acceptance. 11. So far as reliance placed by the learned counsel for the petitioner in the case of Canara Bank & others (supra) is concerned, the same is not applicable to the present fact situation of the case, as the petitioners in the said case were entitled to be considered in terms of the policy dated 08.05.1993, whereas her case was considered and rejected as per the policy of the year 2005. Therefore, the Supreme Court upheld the order of the High Court directing reconsidering the case of the petitioners in terms of the policy which was in vogue at the time of submission of the application. After a lapse of 14 years at this point of time, in the considered opinion of this Court, no direction can be issued for creation of supernumerary post. It is pertinent to note that the direction to create supernumerary post was issued by the Supreme Court to provide compassionate appointment as the same is made to mitigate the hardship caused due to death of bread earner of the family. Therefore, the decisions in the cases of Smt. Sushma Gosain (supra) and Smt. Phoolwati (supra) have no application to the fact situation of the instant case. 12. In view of the preceding analysis, I do not find any merit in this petition. The same fails and is accordingly dismissed. The original record produced by the learned Assistant Solicitor General of India shall be returned to her.