Punjab-Haryana High Court
Bhupinder Batra vs Union Of India & Others on 5 October, 2011
Author: Tejinder Singh Dhindsa
Bench: Permod Kohli, Tejinder Singh Dhindsa
CWP No.6173/CAT of 2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.6173/CAT of 2011 (O&M)
Date of Decision : 05.10.2011
Bhupinder Batra ... Petitioner
versus
Union of India & others ... Respondents
CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI
HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA
Present : Mr. Kapil Kakkar, Advocate
for the petitioner.
Mr. Heman Aggarwal, Advocate
for respondent No.1.
Mr. Madan Mohan, Advocate
for respondents No.2 & 3.
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Tejinder Singh Dhindsa, J.
The present writ petition is directed against the order dated 13.10.2010 passed by the Central Administrative Tribunal (for short 'CAT') Chandigarh Bench, Chandigarh in OA No.762/HR/2009 as also the order dated 08.09.2008 passed by respondent No.1 whereby the claim of the petitioner for appointment on compassionate ground has been rejected.
Father of the petitioner was working on the post of T.S.O. on permanent basis with Bharat Sanchar Nigam Limited (for short 'BSNL'). He died on 31.07.2002. It has been averred that upon the death of his father and as there was no source of income and livelihood, the petitioner submitted his claim for compassionate CWP No.6173/CAT of 2011 (O&M) -2- appointment on 13.06.2003. The case of the petitioner for compassionate appointment was considered by the Circle High Power Committee of Haryana Circle BSNL Ambala in its meeting held on 11.12.2007 and 12.12.2007 and his claim was rejected vide order dated 08.09.2008. A perusal of the rejection order would reveal that the claim of the petitioner has been considered under the provisions of a scheme dated 09.10.1998 as also in accordance with BSNL Head Quarter letter dated 27.06.2007.
Vide office memo dated 09.10.1998, the Government of India Ministry of Personnel Public Grievances and Pensions formulated a scheme for compassionate appointment. Clause 12 of the scheme deals with the procedure for ascertaining the necessary information and processing the cases of compassionate appointment. Clause 16 (c) clearly lays down that an application for compassionate appointment is not to be rejected merely on the ground that the family of the government servant has received the benefits under the various welfare schemes. Clause 12 of 1998 scheme as also Clause 16(c) are extracted hereunder:
"12. Procedure
(a) The proforma as in Annexure may be used by Ministries/ Departments/Offices for ascertaining necessary information and processing the cases of compassionate appointment.
(b) The Welfare Officer in each Ministry/Department/Office should meet the members of the family of the government servant in question immediately after his death to advise and assist them in getting appointment on compassionate grounds. The applicant should be called in person at the very first stage and advised in person about the requirements and formalities to be completed by him. CWP No.6173/CAT of 2011 (O&M) -3-
(c) An application for appointment on compassionate grounds should be considered in the light of the instructions issued from time to time by the Department of Personnel and Training (Establishment Division) on the subject by a committee of officers- one Chairman and two members- of the rank of Dy. Secretary/Director in the Ministry/ Department and officers of equivalent rank in the case of attached and subordinate offices. The Welfare officer may also be made one of the members/Chairman of the committee depending upon his rank. The committee may meet during the second week of every month to consider cases received during the previous month. The applicant may also be granted personal hearing by the committee, if necessary, for better appreciation of the facts of the case.
(d) Recommendation of the committee should be placed before the competent authority for a decision. If the competent authority disagrees with the committee's recommendation, the case may be referred to the next higher authority for a decision.
16. General
(c) The scheme of compassionate appointments was conceived as far back as 1958. Since then a number of welfare measures have been introduced by the government which have made a significant difference in the financial position of the families of the government servants dying in harness/retired on medical grounds. An application for compassionate appointment should, however, not be rejected merely on the ground that the family of the government servant has received the benefits under the various welfare schemes. While considering a request for appointment on compassionate ground a balanced and objective assessment of the financial condition of the family has to be made taking into account its assets and liabilities (including the benefits received under the various welfare schemes mentioned above) and all other relevant factors such as the presence of an earning member, size of the CWP No.6173/CAT of 2011 (O&M) -4- family, ages of the children and the essential needs of the family etc."
BSNL Corporate Office, New Delhi issued a letter dated 27.06.2007 issuing certain guidelines regarding the compassionate appointment. In terms of such letter a weightage point system was sought to be introduced so as to bring uniformity in the assessment of the indigent condition of the family. In terms thereof points were to be awarded under various parameters in the nature of presence of earning family members, size of the family, ages of the children, essential needs of the family etc. and cases with 55 or more net points were to be treated as eligible for consideration for compassionate appointment and cases with net points below 55 were to be treated as non-indigent and were liable to be rejected.
Learned counsel for the petitioner and counsel for respondents No.2 & 3 have been heard at length.
Learned counsel for the petitioner has vehemently argued that the policy which was prevalent on the date of the death of the bread earner had to be applied for considering the case of compassionate appointment of any of the dependents. In furtherance of such submission, it has been argued that the claim of the petitioner for compassionate appointment had to be considered in the lights of the policy governing compassionate appointment dated 09.10.1998 and that the subsequent policy dated 27.06.2007 could not have been applied so as to form the basis of rejection of the petitioner's claim for compassionate appointment as the date of his father's death was 31.07.2002 i.e. much prior to the issuance of the subsequent policy dated 27.06.2007. In support of such contention, learned counsel for CWP No.6173/CAT of 2011 (O&M) -5- the petitioner has placed reliance on the following judgments:
(i)Parkasho Devi vs. State of Haryana & others, 2010(4) SCT 714
(ii)Abhishek Kumar vs. State of Haryana & others, 2007(2) SCT 457
(iii)State Bank of India & others vs. Jaspal Kaur, 2007(2) RSJ 694
(iv)Mahesh Gupta & others vs. Yashwant Kumar Ahirwar & others, 2007 (4) SCT 313
(v)Sheela Devi vs. State of Haryana and others, 2009(1) RSJ 113 It is also the case of the petitioner that BSNL has acted arbitrarily and has also resorted to a policy of discrimination inasmuch as 23 candidates have been granted compassionate appointment in the year 2004 and out of such 23 candidates, in the case of 19, death of the bread earner occurred after the death of the father of the petitioner. To substantiate such assertion the petitioner has placed reliance on a letter dated 15.05.2010 which was the information supplied to him under the provisions of Right to Information Act, 2005 by BSNL and the same was placed on record as Annexure A-9 along with the rejoinder filed before the CAT.
Learned counsel for respondents No.2 & 3 would however, contend that the policy dated 09.10.1998 has not been superseded and was very much alive and it is only towards providing uniformity in assessment of the indigent condition of the family concerned that the subsequent letter dated 27.06.2007 had been issued by the BSNL. It is thus, contended that the rejection of the claim of the petitioner regarding compassionate appointment vide order dated 08.09.2008 was perfectly valid as the same had been issued after due consideration having been afforded to the claims of the petitioner in terms of the policy dated 09.10.1998 read along with BSNL head quarter letter CWP No.6173/CAT of 2011 (O&M) -6- dated 27.06.2007.
CAT vide order dated 13.10.2010 has dismissed the OA filed by the petitioner wherein the rejection order dated 08.09.2008 claiming compassionate appointment had been impugned. It has been held by the CAT that the criteria adopted by the respondents in comparing the relative indigence of the different candidates was logical and reasonable. It has been held that compassionate appointment cannot be claimed as a matter of right or on a hereditary basis. While dismissing the OA, CAT has upheld the action of BSNL in applying the parameters as laid down in the letter dated 27.06.2007 which had introduced the weightage point system to assess the indigent condition of the family concerned.
Broadly, two questions arise for our consideration in the facts of the present case :
(a) the scope and applicability of letter dated 27.06.2007 issued by BSNL whereby the weightage point system had been introduced.
(b) as to whether the respondent-authorities had acted in an arbitrary manner and had discriminated while rejecting the claim of the petitioner for compassionate appointment.
As regards question (a), there is no doubt as regards the settled proposition of law that it is the policy which was prevalent on the date of the death of the bread earner that has to be applied for considering the case of compassionate appointment. Any subsequent policy would not hold the field. The contention of the learned counsel for the petitioner that his case had to be considered in the light of the policy dated 09.10.1998 and not in terms of the subsequent policy CWP No.6173/CAT of 2011 (O&M) -7- dated 27.06.2007 on account of the fact that his father had died on 31.07.2002 is erroneous. The subsequent letter dated 27.06.2007 issued by the BSNL head office does not supersede the policy dated 09.10.1998. The letter dated 27.06.2007 merely envisages the introduction of a weightage point system as regards assessment of the indigent condition of the family concerned. Be that as it may, the issue that arises for adjudication is regarding the retrospective operation of the weightage point system as contained in the letter dated 27.06.2007. The policy dated 09.10.1998 is comprehensive in nature. The procedure as regarding ascertaining requisite information and processing of the case for compassionate appointment has been dealt with comprehensively. Still further the policy clearly lays down that an application for compassionate appointment is not to be rejected merely on the ground that the family of the government servant has received the benefits under certain welfare schemes. While considering his request for appointment on compassionate ground, the 1998 policy mandates a balanced and objective assessment of the financial condition of the family by taking into account its assets and liabilities. By virtue of the subsequent letter dated 27.06.2007 weightage point system has been introduced to assess the indigent condition of the family. The rejection of the claim of the petitioner for compassionate appointment by passing of the impugned order dated 08.09.2008 has been made on the premise that by applying the weightage point system the petitioner has been awarded 52 points and as such fell short of the bench mark of 55 marks which is the bench mark for being considered eligible for compassionate appointment. The letter dated 27.06.2007 introducing the weightage point system cannot operate retrospectively CWP No.6173/CAT of 2011 (O&M) -8- and be applied in the case of the petitioner whose father had died on 31.07.2002 and he having put in his request for compassionate appointment in the year 2003 itself, that is at the point of time when the letter dated 27.06.2007 introducing weightage point system had not even seen the light of the day. As such it was incumbent for the respondent authority to have considered the claim of the petitioner for compassionate appointment in the light of the policy dated 09.10.1998 and without applying the weightage point system as contained in the letter dated 27.06.2007.
As regards (b) we find that BSNL has indeed acted arbitrarily and has resorted to discrimination as regards the grant of compassionate appointments are concerned. The petitioner has placed specific reliance on a communication dated 15.05.2010 (Annexure A-9) issued by BSNL in respect to a query under the Right to Information Act, 2005 wherein a list of 23 candidates who were granted compassionate appointment in pursuance to the Selection Committee Meeting dated 27.08.2004 has been disclosed. Such communication and list of the 23 candidates has been placed on record as Annexure A-9 along with the rejoinder to the reply filed by BSNL. On being confronted by such information and list, learned counsel for respondent No.2 - BSNL did not deny the same. A perusal of the list further reveals that out of total 23 candidates having been approved for compassionate ground appointment in the year 2004, 19 are such wherein the date of death of the bread earner was subsequent to the date of death of the father of the petitioner i.e. 31.07.2002. Admittedly, the petitioner had submitted his request for compassionate appointment in the year 2003 and his application seeking CWP No.6173/CAT of 2011 (O&M) -9- compassionate appointment had been duly recommended by the competent official in BSNL on 13.04.2004. No explanation much less a plausible explanation has been forthcoming from the respondent- authorities to explain the gross and inordinate delay in delaying the consideration of the claim of the petitioner for compassionate appointment till December, 2007 when the claim was put before the Circle High Power Committee of Haryana Circle, Ambala. Needless to mention that the object of the scheme providing compassionate appointment to a dependent family of a government servant dying in harness is to relieve the family from the immediate financial crisis. The State Government or its instrumentalities are expected to deal with such claims for compassionate appointment with a certain element of urgency and sensitivity. Even the scheme dated 09.10.1998 itself provides for the concerned committee considering the cases for compassionate appointment to meet during the second week of every month to consider the cases received during the previous month.
For certain unknown and inexplicable reasons, the case of the petitioner was kept pending for a period of almost 4 years prior to the same having been rejected. The arbitrariness is writ large. The respondent authority has clearly acted in a discriminatory manner and has resorted to a policy of pick and choose in so far as grant of compassionate appointment is concerned.
We are of the considered view that the writ petition deserves to succeed. For the reasons recorded above, we set aside order dated 13.10.2010 passed by the CAT, Chandigarh Bench, Chandigarh in OA No.762/HR/2009 as also the order dated 08.09.2008 passed by BSNL rejecting the claim of the petitioner seeking CWP No.6173/CAT of 2011 (O&M) -10- appointment on compassionate ground. We accordingly direct that the case of the petitioner seeking compassionate appointment be considered afresh in the light of the policy governing compassionate appointment dated 09.10.1998 without adverting to the subsequent letter dated 27.06.2007. The needful be done within a period of two months from the date of receipt of certified copy of this order.
The petition stands disposed of.
(Permod Kohli) (Tejinder Singh Dhindsa)
Judge Judge
October 05, 2011
sonia