Union Of India Thr. Secretary, ... vs Shri Balu S/O. Shri Dadaji Chapale
2016 Latest Caselaw 4566 Bom

     WP 1794.16.[J]odt                                 1

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                        
                                   NAGPUR BENCH : NAGPUR




                                                               
                              WRIT PETITION NO.1794 OF 2016

     1]     Union of India, through Secretary,
            Ministry of Communication,
            Department of Posts, Dak Bhavan,




                                                              
            Sansad Marg, New Delhi-110 001.

     2]     The Chief Post Master General,
            Maharashtra Circle,
            Mumbai-440 001,




                                                  
     3]     The Senior Superintendent of Post Offices,
                             
            Chanda Division, Chandrapur-442 401. ..                             Petitioners

                                    .. Versus ..
                            
     Shri Balu s/o Shri Dadaji Chapale,
     Aged about 39 years,
     Occupation - Not known,
     R/o. At Porla Village, 
      

     Tahsil and District - Chandrapur.                           ..             Respondent
   



                             .........
     Shri A.M. Joshi, counsel for the petitioners,
     Shri A.B. Bambal, counsel for the respondent.
                             .........





                                    CORAM :  SMT. VASANTI   A  NAIK  AND
                                             MRS. SWAPNA JOSHI, JJ.

DATED : AUGUST 09, 2016.

ORAL JUDGMENT : (Per : SMT. VASANTI A NAIK, J.)

Rule. Rule is made returnable forthwith. The petition is heard

finally with the consent of the learned counsel for the parties.

By this writ petition, the petitioners challenge the order of the

Central Administrative Tribunal, dated 20.3.2015, partly allowing the Original

Application filed by the respondent directing the petitioners to take a decision

on the application made by the respondent for compassionate appointment

strictly in the light of the circular dated 20.1.2010.

Few facts giving rise to the petition are stated thus :

The respondent's father late Dadaji was working as Group 'D'

employee at Cement Nagar Sub-Post Office in Chandrapur. Within ten days

from the death of Dadaji on 30.1.2008, the respondent applied for

compassionate appointment. The claim of the respondent was rejected by the

committee in the year 2009. By a circular issued by the petitioners on

20.1.2010, a scheme was introduced and by the scheme marks/points were

liable to be allotted to each individual claiming compassionate appointment.

The respondent again applied on the basis of the circular dated 20.1.2010.

Though the case of the petitioners was recommended at the preliminary stage,

the committee constituted by the petitioners for considering the recommended

claims, rejected the application of the respondent. The said order was

challenged by the respondent before the Central Administrative Tribunal.

The Central Administrative Tribunal, by the impugned order, dated 20.3.2015

partly allowed the Original Application filed by the respondent and directed

the petitioners to consider the claim of the respondent in the light of the

circular, dated 20.1.2010, by which points were liable to be allotted to each of

the candidates on various aspects.

The learned counsel for the petitioners has challenged the order of

the Tribunal on several grounds. It is stated that the Tribunal has not

considered the circumstances of the case in the right perspective and has

directed the petitioners to consider the claim of the respondent for

compassionate appointment in the light of the circular, dated 20.1.2010,

though the circular cannot be applied to the case of the respondent. It is

stated that the claim of the respondent was rejected in the year 2009 and the

respondent could not have taken the advantage of the circular that was issued

subsequently on 20.1.2010. It is stated that the respondent, the elder son of

the deceased, was 30 years of age at the time of the death of Dadaji. It is

stated that the younger son of Dadaji was married and was 27 years of age.

It is stated that the mother of the respondent that is the widow of Dadaji was

receiving monthly pension of Rs.8,833/- at the relevant time. It is stated that

the respondent and his mother had a house of their own and also had a field

property ad-measuring 0.78 acres. It is stated that, in the circumstances of the

case, it could not be said that the respondent falls within the category of

indigent persons and was entitled for compassionate appointment. It is stated

that the Tribunal erroneously directed the petitioners to consider the claim of

the respondent on the basis of the circular, dated 20.1.2010, when the same

could not have been applied to the case in hand. It is stated that there were in

all 196 applications for the 39 vacancies and, therefore, the committee rightly

held that the claim of several others was much better than the claim of the

respondent. It is stated that when the respondent's application was rejected in

the year 2009, the respondent could not have relied on the circular of the year

2010 and the Tribunal, in turn, could not directed the petitioners to consider

the claim of the respondent in the light of the said circular.

On the other hand, it is stated on behalf of the respondent that the

Tribunal was justified in directing the petitioners to consider the claim of the

respondent for compassionate appointment in the light of the circular, dated

20.1.2010. It is stated that though the respondent's family possesses 0.78

acres of land, the land is situated in the naxalite area. It is stated that the

house owned and possessed by the family of the respondent is small and the

mother of the respondent received a monthly pension of Rs.8,833/- and the

said pension was not enough for maintaining the respondent and his mother. It

is stated that the claim of the respondent was rejected by the order dated

3.3.2010 that was impugned before the Tribunal and hence the Tribunal has

rightly directed the petitioners to consider the claim of the respondent on the

basis of the circular, dated 20.1.2010. The learned counsel sought for the

dismissal of the writ petition.

On hearing the learned counsel for the parties and on a perusal of

the impugned order, it appears that the impugned order cannot be sustained

and is liable to be set aside. Compassionate appointment cannot be claimed as

of a right. The indigence of the family is the only relevant and principal aspect

that needs to be considered while deciding the application for compassionate

appointment. The respondent, who claimed compassionate appointment, was

of 30 years of age at the time of the death of his father and able bodied. The

respondent could not have claimed that he is without any employment, even

on daily wages, while making the application for compassionate appointment

within ten days from the death of his father. The father of the respondent had

put in more than 25 years of service and was about to retire on attaining the

age of superannuation just after five years from his death. The mother of the

respondent received a sum of more than Rs.1,00,000/- towards the retiral

benefits and was also receiving monthly pension of Rs.8,833/-. The younger

brother of the respondent was married and appears to have been employed.

The family of the respondent, that is the mother of the respondent and the

respondent own a house property in which they reside. Also, land was allotted

to the father of the respondent by the State Government for cultivating the

same. If the said land is not cultivated by the respondent, who was 30 years of

age at the time of making the application, it is his fault. Also, the claim for

compassionate appointment could be granted only if the family members of

the deceased are indigent. In the aforesaid set of facts, it cannot be said, as

was rightly submitted on behalf of the petitioners, that the case of the

respondent could not have fallen within the category of totally indigent

persons so as to consider his claim for compassionate appointment. Also, the

father of the respondent had expired in the year 2008 and his application was

rejected at the preliminary stage by the then committee in the year 2009.

After the claim of the respondent was not recommended in the year 2009, the

respondent could not have sought the benefit of the circular, dated 20.1.2010.

After his father had expired in 2008, the respondent had applied for

compassionate appointment in the year 2008 and his claim was rejected at the

preliminary stage in the year 2009. It is held by the Hon'ble Supreme Court

from time to time that the policy that is applicable at the relevant time when

the application is made should be applied while considering the claim for

compassionate appointment. It is rightly submitted on behalf of the petitioners

that the circular dated 20.1.2010 could not have been applied to the facts of

this case. If the contention of the respondent is accepted and if the circular is

applied to old cases, several old cases would be opened up and a claim would

be made by the applicants whose claims are already rejected that in terms of

the policy of awarding points, dated 20.1.2010 their cases should be opened

and they should be decided by awarding the points to them as per the said

policy. In the circumstances of the case, the respondent was not entitled for

compassionate appointment. Cogent reasons are not recorded by the Tribunal

for overruling the decision of the expert committee that held that the

respondent was not entitled for compassionate appointment. There were in

all, 196 applications and there were only 39 vacancies for appointing the

candidates on compassionate ground. The expert committee appears to have

considered the merit and demerit of the candidates as per the policy then

existing and must have been rejected the claim of the respondent. As observed

by the Tribunal, it is well settled that compassionate appointment cannot be

claimed as of a right. In stead of granting compassionate appointment to a

claimant like the respondent who was 30 years of age and unemployed at the

time of making of the application, the claim of a lady, a widow, who loses her

husband at the age of 30 years with young children would be better placed. In

the circumstances of the case, we do not find that the Tribunal was justified in

directing the petitioners to consider the claim of the respondent in the light of

the policy, dated 20.1.2010, specially when the claim of the respondent was

rejected at the preliminary stage in the year 2009, before the policy was

brought into force.

Hence, for the reasons aforesaid, the writ petition is allowed. The

impugned order is quashed and set aside. The Original Application filed by the

respondent stands dismissed. Rule is made absolute in the aforesaid terms

with no order as to costs.

                              JUDGE                                 JUDGE
     Gulande, PA




                                                
                                      
                             
                            
      
   












                                                                                   
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