Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 235 (RAJ)

Dinesh Singh Rathore v. Union of India

2017-01-19

NAVIN SINHA, VIJAY KUMAR VYAS

body2017
ORDER : 1. The present writ petition assails order dated 18.9.2014 dismissing O.A. No. 213/2013, passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur declining to interfere with the decision of the Respondents holding the Petitioner ineligible for compassionate appointment. 2. Learned Counsel for the Petitioner submits that his father died in harness on 6.9.2009. On 14.06.2010 his mother submitted an application that the petitioner may be considered for compassionate appointment. It was rejected on 12.9.2012 by an unreasoned and non-speaking order. The petitioner represented against the same which was again rejected on 5.12.2012 also by a unreasoned and non-speaking order. The O.A. application was then preferred. In their reply the Respondents disclosed an internal guideline with regard to compassionate appointment providing for award of weightage points. These guidelines were not in the nature of any rules and regulations. The Respondents have taken varying stands that the petitioner secured 35 points under the weightage system and at another stage that he secured 40 points. The petitioner filed an application under the Right to Information Act seeking the rules under which claims for compassionate appointments were being considered as also how many persons had been provided compassionate appointment between the year 2009-2012. In reply, the Respondents only disclosed the names of persons granted compassionate appointment without disclosing the weightage points obtained by them. 3. Reliance was placed on a Bench decision in 2009 (1) RLW 810 Rajasthan (SJ) Mohd. Faruk Bhati v. S.B.B.J. & Ors. that if there was discrimination in consideration for compassionate appointment of persons similarly situated, Article 14 warranted consideration of compassionate appointment. Further reliance was placed on AIR 2007 SC 3077 Mukesh Kumar v. Union of India & Ors. holding that If the parameters for assessment that the family was not indigent were not disclosed, the order rejecting the claim for compassionate appointment was unsustainable. 4. Counsel for the Respondents supporting the order under appeal submitted that the guidelines dated 27.06.2007 under which the weightage points were to be granted under different heads despite being disclosed in the reply was never challenged. There was also no challenge to the weightage points awarded to the petitioner as having been not granted according to the guidelines or inadequacy of the same. Under the policy a minimum of 55 points was required for consideration. There was also no challenge to the weightage points awarded to the petitioner as having been not granted according to the guidelines or inadequacy of the same. Under the policy a minimum of 55 points was required for consideration. Whether it be 35 points or 40 points it still remains below 55 making the petitioner ineligible for consideration. 5. We have considered the submissions on behalf of the parties. 6. Compassionate appointment is not a matter of right and is an exception to the general rule for appointment in accordance with Article 14 by open advertisement and competitive merit selection. Appointment under the Government or a semi Government body having been considered as a national wealth, equal opportunity has to be given to all concerned and eligible for participation. The prohibition contained in Article 16 that equality of opportunity in matters of public employment cannot be discriminated inter alia on the ground of descent is partially lifted because the family may be destitute and in penury due to the sudden death of the bread winner because of which the Government as a benevolent employer has the intention to look after them. It is always possible that there may be another applicant better suited and more in need of employment but who did not have the benefit of being a descendant of a deceased government employee and therefore he gets shut out completely from consideration, let alone applying as no advertisement is even published. 7. Therefore, the Courts have regularly held that any consideration for compassionate appointment has to be strictly in accordance with the policy governing the same. It is not mandatory that there must be statutory rules. Executive instructions and polices in absence of statutory rules will suffice and will govern the issue. At this stage we must express our disappointment that the conduct of the Respondents in passing unreasoned orders on 12.9.2012 and repeating on 5.12.2012 was unfortunate generating avoidable litigation. Power is not absolute but is regulated by law and ultimately by the Constitution. The Corporation being a State under Article 14 of the Constitution is bound to act reasonably and fairly under Article 14 by passing reasoned orders. It is always possible that if the petitioner had been told the reasons he may have applied his mind and then take a decisions for further actions accordingly. 8. Every applicant for compassionate appointment cannot be accommodated. It is always possible that if the petitioner had been told the reasons he may have applied his mind and then take a decisions for further actions accordingly. 8. Every applicant for compassionate appointment cannot be accommodated. Therefore, framing of a policy with weightage points is perfectly in accordance with law. There is no occasions for us to test the validity of the policy dated 27.06.2007 as that was never under challenge. There is also no challenge to the weightage points granted to the petitioner under any head as being contrary to the policy itself. A comparative analysis for compassionate appointment amongst competing candidates by grant of weightage under certain heads is perfectly in order and in accordance with Article 14 of the Constitution. The petitioner admittedly has not been able to secure the minimum 55 per cent marks. 9. Mukesh Kumara (supra) has no application to the facts of the present case in that case no materials were placed on basis of which the conclusion was reached that the family was not in an indigent condition leading to the matter being remanded. In Mohd. Faruk Bhati (supra), there was a discrimination as certain persons with higher pension had been considered for compassionate appointment. 10. In the present case, the petitioner does not allege that anyone with less than 35 or 40 marks has been provided compassionate appointment causing arbitrary discrimination against him. 11. In conclusion, we find no reason to interfere. The writ petition is dismissed.