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SMT. SHUBHAWATI DEVI AND ANOTHER versus UNION OF INDIA AND OTHERS

High Court of Judicature at Allahabad

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Smt. Shubhawati Devi And Another v. Union Of India And Others - WRIT - A No. 36007 of 2003 [2006] RD-AH 4387 (23 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 34

Civil Misc. Writ Petition No. 36007 of 2003

Smt. Subhawati Devi and another Vs. Union of India and others

~~~~~

Hon. Dr. B.S. Chauhan, J.

Hon. Dilip Gupta, J.

This writ petition has been filed for quashing the order dated 6.8.2002 passed by the Chief Engineer (A.F.) Allahabad by which the application submitted by petitioner No. 2 (son of the deceased) for seeking compassionate appointment has been rejected and the judgment and order dated 31.3.2003 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad by which the Original Application No. 388 of 2003 which had been filed for quashing the aforesaid order dated 6.8.2002 has been dismissed.

This petition has been filed by the widow and son of late Ram Adhar Rajbhar who, while working as M.T. Driver with the Garrison Engineer (A.F.), Gorakhpur, died on 9.6.1999. An application was submitted by Ganesh Kumar Rajbhar, son of late Ram Adhar Rajbhar claiming appointment on compassionate grounds. He had been directed to file documents to support his claim from time to time but ultimately by the order dated 6.8.2002, his claim was rejected. The relevant portion of the order is quoted below:-

"According to the information available on record, the following is the position of the family of the deceased government Servant-

(a)- The death of Govt. Servant occurred on 13 June 1999. His wife, two daughters and four sons survived him. The deceased Govt. servant's family received Rs. 2,21,597/- as terminal benefits and family pension Rs. 2437/- per month.

(b)- Family owns property worth Rs. 16,500/-.

(c)- Monthly income of the family is Rs. 1500/- per month as per certificate issued by Tehsildar Deoria.

The Board of Officer at this HQ after taking into account each aspect referred to above has considered this case along with other candidates. However, due to more deserving cases and few vacancies available, the case was not recommended by the Board of Officers for appointment on compassionate ground. In view of this, the competent authority is of the view that this case does not deserve employment assistance on compassionate grounds. More over, the need for immediate assistance by way of compassionate employment to tide over the emergency and crisis is lacking in this case as the death of the Govt. Servant took place on 13 June 1999 i.e. more than three years ago.

Therefore, after due circumspection and consideration, in the light of the enclosed guidelines of DOP&T and various judgments of the Hon'ble Supreme Court that the appointment on compassionate grounds is not a matter of right and after a balanced and objective/assessment of the totality of the circumstances of the case including the decision of the Board on Officers at this HQ, the competent authority has rejected the employment assistance to Sh Ganesh Kumar Rajbhar S/O Late Ram Adhar Rajbhar, Ex-MTD on compassionate grounds due to non availability of sufficient vacancy within 5% quota."

This order was challenged by the petitioners before the Central Administrative Tribunal. The Tribunal noticed that the overall financial condition of the family has necessarily to be taken into consideration and a comparison has also to be made with the cases of other candidates seeking compassionate appointment. The Tribunal further noticed that apart from getting family pension of Rs. 2437/- per month, the family owned property worth Rs. 16,500/- and they were also getting Rs. 1500/- as monthly income from other sources. The Tribunal also noticed that the compassionate appointments have to be given within the 5 percent limit of the direct recruitment vacancies. The Tribunal, after taking into consideration the various factors, concluded that there was no error in the order dated 6.8.2002 by which the application for grant of compassionate appointment had been rejected.

We have heard Sri Anil Kumar, learned counsel for the petitioners and the learned Standing Counsel appearing for the respondents and have perused the materials available on record.

Learned counsel for the petitioner contended that the terminal benefits and the family pension paid on the death of Ram Adhar Rajbhar could not have been taken into consideration while rejecting the claim for compassionate appointment. We express our inability to accept the contention of the learned counsel for the petitioners in view of the decision of the Supreme Court in Punjab National Bank Vs. Ashwini Kumar Taneja 2004 AIR SCW 4602 wherein it was observed:-

"One other thing which needs to be considered is whether the retiral benefits are to be taken into consideration while dealing with prayer for compassionate appointment. The High Court was of the view that the same was not to be taken into consideration. The view is contrary to what has been held recently in The General Manager (D. & P.B.) and others v. Kunti Tiwary and another (Civil Appeal 126 of 2004 disposed of on 5.1.2004). It was categorically held that the amounts have to be taken into consideration. In the instant case, there was a scheme called Scheme for Employment of the Dependants of the Employee who die while in the service of the Bank Service on Compassionate Grounds' (in short the ''Scheme') operating in the appellant no. 1 - Bank which categorically provides as follows:

"FINANCIAL CONDITION OF THE FAMILY

The dependants of an employee dying in harness may be considered for compassionate appointment provided the family is without sufficient means of livelihood, specifically keeping in view the following :

(a) Family pension;

(b) Gratuity amount received;

(c) Employee's/Employer's contribution to PF;

(d) Any compensation paid by the bank or its Welfare Fund;

(e) Proceeds of LIC policy and other investments of the deceased employee;

(f) Income for family from other sources;

(g) Employment of other family members;

(h) Size of the family and liabilities, if any, etc."

In the present case, we find from a perusal of the order dated 6.8.2002 that there is a similar Scheme contained in the Circular dated 9.3.2001                                            which provides for consideration of various factors, such as amount of terminal benefits, amount of family pension and moveable and immoveable properties left by the deceased at the time of death to judge the financial condition of the family and only in cases of acute financial distress, the most deserving cases have to be considered against the 5% direct recruitment vacancies. It is on the basis of the aforesaid Circular that the claim of petitioner No.2 for compassionate appointment was rejected as can be seen from the relevant portion of the order dated 6.8.2002 which has been reproduced above.

Learned counsel for the petitioners, however, submitted that the Circular dated 9.3.2001 could not have been taken into consideration for considering the claim set out by the petitioner No.2 for grant of compassionate appointment inasmuch as the death of his father had occurred prior to the issuance of the Circular or the date of submission of the application for grant of compassionate appointment. This submission of the learned counsel for the petitioners cannot also be accepted.

In State of Tamil Nadu Vs. M/s. Hind Stone & Ors., AIR 1981 SC 711, while dealing with a similar issue the Hon'ble Supreme Court held that mere pendency of an application does not create any legal right in favour of the applicant and the application has to be decided as per the law applicable on the date of decision. The Court held as under:-

"While it is true that such application should be dealt with within a reasonable time, it cannot on that account be said that right to have an application disposed of in a reasonable time, clothes an applicant for a lease with a right to have the application disposed of on the basis of rules in force at the time of making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in any one, an application for a lease has necessarily to be dealt with according to rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of application."

The said judgment has been approved and a similar view has been reiterated by the Hon'ble Supreme Court in V. Karnal Durai Vs. District Collector, Tuticorin & Anr., (1999) 1 SCC 475, wherein it has been held that if during the pendency of an application for grant of a mining lease the rules are amended, the application is to be decided as per the amended rules.

Similar view has been reiterated in Howrah Municipal Corporation & Ors. Vs. Ganges Rope Company Ltd. & Ors., (2004) 1 SCC 663, wherein reliance had been placed on the judgment of its earlier judgment in Usman Ganij. Khatri of Bombay Vs. Cantonment Board & Ors., (1992) 3 SCC 455 and State of West Bengal Vs. Terra Firma Investment & Trading Pvt. Ltd, (1995) 1 SCC 125, wherein the Apex Court had held that application is to be decided on the basis of the law existing on the date of decision and not on the basis of the law prevailing on the date of submission of the application.

Thus, in view of the decision rendered in the aforesaid decisions, the matter was required to be examined by the authorities in the light of the Circular dated 9.3.2001. The authority has examined the financial condition of the applicant and also the comparative financial distress of the candidates in the light of the aforesaid Circular and has rejected the case set out by petitioner No. 2 for grant of compassionate appointment. The Tribunal has also rejected the application for cogent reasons.

We, therefore, find no error in the order dated 6.8.2002 passed by the authority or the judgment and order dated 31.3.2003 passed by the Central Administrative Tribunal.

The writ petition is, accordingly, dismissed.

Dt/- 23.2.2006

Sharma


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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