Union Of India Thr Secretary, New ... vs Shri Abhijit S/O Shri Vijay Batwe
2016 Latest Caselaw 7137 Bom

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                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                     
                                     BENCH AT NAGPUR, NAGPUR.
                                                ...

WRIT PETITION NO. 2518/2016

1) Union of India Through Secretary Ministry of Communication, Department of Posts,

Dak Bhawan, Sansad Marg, New Delhi-110001.

    2)
                                         
              The Chief Post Master General, 
              Maharashtra Circle, 
              Mumbai-400 001
                                        
    3)        The Senior Superintendent of Post Offices

Chanda Division, Chandrapur-441222. ..PETITIONERS

v e r s u s

* Shri Abhijit s/o Shri Vijay Batwe

Aged about 34 years, occu: Not known R/o C/o Shri Sanjay Matte Shrama Safalya Gruha Society Bapatnagar, Gajanan Maharaj Road

Chandrapur Tah. & Dist. Chandrapur PIN - 442401. ...RESPONDENTS ...........................................................................................................................

Shri Ambarish Joshi, counsel for the petitioners Shri A.N.Dighore, Advocate for the Respondent

............................................................................................................................

                                                        CORAM:    SMT. VASANTI A. NAIK   &
                                                                       MRS . SWAPNA  JOSHI, JJ
                                                                                              . 
                                                        DATED :       13  December,  2016
                                                                        th



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

Rule. Rule made returnable forthwith. The petition is heard

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finally at the stage of admission, with the consent of the learned counsel for

the parties.

2. By this Writ Petition, the petitioners challenge the order of the

Central Administrative Tribunal, dated 27.5.2015, allowing the Original

Application filed by the respondent herein and directing the petitioners to

consider the representation of the respondent for appointment on

compassionate ground.

3. The father of the respondent, by name, Vijay Batwe, expired

on 3.6.1992, while in service. The respondent was 12-years of age at the time

of the death of his father. The mother of the respondent applied for

appointment on compassionate ground. The mother of the respondent had

received a sum of Rs. 69,888/- towards the retiral benefits payable to her

deceased husband. The Application of the mother of the respondent was

favourably considered and by an order dated 13.3.1993, the mother of the

respondent was appointed on a Group 'C' (Class III) post. The mother of the

respondent, however, refused to join on the said post and informed the

petitioners that she would wait till the vacancy occurs in Group 'D' post.

When the respondent attained the age of majority, the respondent applied for

compassionate appointment, by the representation dated 17.2.1999. Though

the petitioners did not take any favourable decision on the representation of

the respondent for several years, the respondent did not seek any direction

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against the petitioner till the Original Application was filed in the year 2010,

after the respondent secured the information from the petitioners on a query

made under the Right to Information Act that the representation of the

respondent was rejected in the year 2006. On an appreciation of the material

on record, the Tribunal directed the petitioners to decide the representation

of the respondent on merits by a reasoned order and communicate the same

to the respondent within eight weeks. The petitioners have impugned the

order of the Tribunal in the instant Petition.

4. Shri Ambarish Joshi, the learned counsel for the petitioners

submitted that after the mother of the respondent was granted appointment

by the order dated 13.3.1993 and as she refused to accept the same, neither

the mother of the respondent nor the respondent were entitled for

compassionate appointment. It is stated that in view of Clause 14 of the office

memorandum dated 9.10.1998, a compassionate appointment cannot be

transferred to another person on the ground of compassion. It is stated that in

the subsequent office memorandums of the petitioners, a similar clause finds

place. It is stated that the respondent has belatedly filed the Original

Application after waiting for more than ten years from the date of his

representation, for appointment on compassionate ground. It is submitted that

the aspect of delay has not been considered by the Tribunal in the right

perspective. It is stated that the object of granting compassionate appointment

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would stand frustrated as the father of the respondent has expired in the year

1993, the Original Application was filed by the respondent in 2010 and the

Tribunal has directed, by an order of May 2015, to reconsider the

representation of the respondent for compassionate appointment. It is stated

that the mother of the respondent had not only received an amount of Rs.

69,888/- towards the retiral dues payable to her late husband but, is also

receiving a sum of Rs. 8,165/- towards monthly pension. It is stated that in

the circumstances of the case and in view of Clause 14 of the office

memorandums that are annexed to the petition, the respondent was not

entitled for compassionate appointment more so, when the mother of the

respondent was appointed in a Group 'C' post and she had refused to accept

the appointment.

5. On the other hand, the learned counsel for the respondent has

supported the order of the Tribunal. It is submitted that the respondent was

continuously sending reminders to the petitioners requesting for a decision on

the application of the respondent for compassionate appointment. It is

submitted that after the respondent was informed in the year 2010 about the

rejection of his representation in the year 2006, the Original Application was

filed. It is stated that the claim of the respondent would survive despite the

appointment of his mother in a Group 'C' post. It is stated that in respect of

some other employee, the employment is granted by the petitioners more than

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16-years from the death of the employee. It is stated that the Tribunal was

justified in allowing the Original Application filed by the respondent. The

learned counsel for the respondent relied on the judgments of Uttarakhand

and Allahabad High Courts, reported in 2013 LAB I.C. (NOC) 307 (UTR)

{Satish Kumar vs. Garrison Engineers and others}; and, 2012 LAB I.C.

2169: {Sanni vs. State of U.P. And others} respectively, to substantiate his

submissions.

6. In the circumstances of the case, the Tribunal was not justified in

allowing the application of the respondent and directing the petitioners to

consider appointing the respondent on compassionate ground as the father of

the petitioner had expired 24 years earlier and the mother of the respondent

is securing the monthly pension of Rs. 8,165/-. Admittedly, the mother of the

respondent was appointed on a Group 'C' post in the year 1993, that is,

immediately after the death of her husband. For the reasons best known to

the mother of the respondent, she refused to accept the Group 'C' post. It is

well-settled that no sooner than a compassionate appointment is granted and

a person is appointed on a particular post, the right for compassionate

appointment gets exhausted. It would be worthwhile to refer to the judgments

of the Hon'ble Supreme Court, reported in 1994 (6) SCC 560 and (1996) &

S.C.C.546, in this regard. The said position could also be substantiated by

Clause 14 of the office memorandums issued by the petitioners, from time to

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time. Clause 14 (b) of the office memorandum dated 9.10.1998, that was

applicable when the respondent had applied, clearly stipulates that a

compassionate appointment cannot be transferred to any other person on

compassion. The very fact that the mother of the respondent refused to accept

the group 'C' post clearly shows that the mother of the respondent was not in

dire need of service or else she could have accepted the class III or Group 'D'

post that was offered by the petitioners. If the right for compassionate

appointment gets exhausted on the appointment of an applicant on a

particular post, the claim cannot thereafter be made by the same applicant or

any other person claiming through him. The Tribunal, however, failed to

consider the clause in the office memorandum in the right perspective and

also failed to consider the inordinate delay on the part of the respondent to

approach the Tribunal. If the respondent had made an application for

compassionate appointment in the year 1999 and if the same was not decided

by the petitioners favourably within a short time, it was necessary for the

respondent to have knocked the doors of the Court or an appropriate forum

within a reasonable time from making of the representation/application. Mere

sending of reminders or making of repeated representations in respect of the

very prayer would not stop the limitation. It would be worthwhile to refer to

the decisions of the Hon'ble Supreme Court, reported in 1995 Supp 4 SCC 593,

(2009) 3 SCC 281, in this regard. It is rightly submitted on behalf of the

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petitioners that the object of granting compassionate appointment would stand

frustrated if the claim of the respondent is considered for compassionate

appointment more than 24 years from the death of his father. Since the mother

of the respondent was already offered compassionate appointment in a Group

'C' post and since the mother of the respondent is receiving monthly pension,

we find that the Tribunal was not justified in directing the petitioners to

reconsider the stale claim of the respondent that was already decided and

rejected in the year 2006, by reopening the matter in the year 2015. The

judgments of the Uttarakhand and Allahabad High Courts (supra) and relied

on by the counsel for the respondent, would not be applicable to the facts of

this case. The claim of the respondent that some other person was appointed

after several years and therefore, the respondent needs to be appointed

cannot be accepted as in that case, admittedly, the mother of the person was

not offered appointment on compassionate ground. The Hon'ble Supreme

Court has warned the Courts and Tribunals in the judgment reported in 2013

(1) Scale 506 {The Chief Commissioner, Central Excise vs. Prabhat Singh},

not to fall prey to any sympathy syndrome, so as to issue directions for

compassionate appointment, without reference to the prescribed norms. The

Hon'ble Supreme Court has further observed that Courts are not supposed to

carry Santa Claus's big bag on Christmas eve, to disburse the gift of

compassionate appointment, to all those who seek a court's intervention. It is

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further held that every such act of sympathy, compassion and discretion,

wherein directions are issued for appointment on compassionate ground,

could deprive a really needy family requiring financial support, and thereby,

push into penury a truly indigent, destitute and impoverish family. In the

circumstances of the case, the judgment of the Hon'ble Supreme Court would

apply.

7. Hence, for the reasons aforesaid, the Writ Petition is allowed.

The impugned order is quashed and set aside. The Original Application is

dismissed.

Rule is made absolute in the aforesaid terms,with no order as to

costs.

                             JUDGE                                   JUDGE





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