1. By way of these petitions, the petitioners have challenged the order of the respondents No.2 & 3 whereby the application of the petitioners seeking compassionate appointment was rejected on the ground that the family of the petitioner is getting handsome amount either by way of retiral dues or by way of pension amount in each of the cases.
2. As the issue involved in these petition is common, they are heard together and are being disposed of by this common judgment. In each of cases the amount received by the petitioner and petitioner' family by way of the monthly pension and retiral dues are recorded as under :
2.1 In Special Civil Application No.13983 of 2011 – Rs. 6,865/- per month towards family pension and Rs. 8,63,925/- as terminal benefit.
2.2 In Special Civil Application No.861 of 2012 – Rs. 8,500/- as family pension, Rs. 3,50,000/- as gratuity, Rs. 2,41,000/- as government insurance, Rs. 5,37,609/- as G.P.F.
2.3 In Special Civil Application No.9191 of 2010 – Rs. 8,866/- per month as pension and Rs. 9,28,441/- as terminal benefit.
2.4 In Special Civil Application No.5812 of 2010 – Rs. 5,832/- per month as pension and Rs. 9,25,407/- as terminal benefit.
2.5 In Special Civil Application No. 16741 of 2011 – Rs. 10,030/- per month as pension and Rs. 14,63,284/- as terminal benefit.
3. The case of the petitioners is that the father of the petitioner concerned has expired during the course of duty and petitioners have applied for compassionate appointment within stipulated period. It is their case that their application came to be rejected by respondents no.2 & 3 relying upon the Government Resolutions dated 10.03.2000, 07.09.2002 and 29.03.2007 issued by Respondent No.1 hereinabove on the ground of having excessive income and the condition of the petitioner's family cannot be said to be pathetic or pitiable. Hence, the present petitions filed by the respective petitioners.
4.0 Mr. K.G. Pandit, learned counsel for the petitioner has raised following contentions : -
4.1 Learned counsel for the petitioner has contended that the Government Resolution dated 10.03.2000, 07.09.2002 and 29.03.2007 which can be said to be as an administrative instructions issued by Respondent No.1 hereinabove and it cannot override the judicial pronouncement or the decision which has been passed by this Hon'ble Court and the highest Court the country, Apex Court.
4.2 He further contended that those Resolutions confer arbitrary power upon the Officers concerned and though the financial condition of the family of the dependents is required to be considered by the officers in exercise of their power, they adopt pick and choose policy and are acting as per their will.
4.3 Learned counsel for the petitioner has also submitted that under the Right to Information Act the petitioner obtained the information and Respondent No.1 has never fixed any such income limits in Government Resolution dated 29.03.2007.
4.4 In some cases the application seeking compassionate appointment made by the dependents of the deceased employee have been granted by the respective government authorities. Learned counsel for the petitioner, therefore, prayed that Government Resolution dated 29.03.2007 is required to be quashed and set aside.
4.5 He further contended that the explanation given at Annexure-I is arbitrary in as much as it required for the particular department or employee which are given to 13 other employees, and as similar treatment is required to be given to the petitioners.
5. Mr. H.S. Soni, learned AGP has contended that the order passed by the respondent authority is in consonance with the policy of the Government and this Court has power to consider it and the case of the compassionate appointment should not be treated as a statutory and fundamental right of the petitioners.
6. In view of several decision of Hon'ble Supreme Court and this court, the petitioner is entitled according to the government policy which is prevailing as on the date of consideration. He further contended that the amount which has been received by the family members of the deceased employee is sufficient to survive and to tide over the financial crises and in some of the cases the claimant is third child of the deceased employee and the amount received by him is more was than Rs.5,00,000/-.
7. In most of the all five cases the monthly income of the deceased family is more than Rs.8,000/- per month as family pension and dependent in most of the cases is a widow or son.
8. In that view of the matter the amount received by the family of the deceased employee is sufficient to survive in the era of crises. He further contended that death of the employee has occurred after the date of the Circular. Even otherwise decision of Hon'ble Supreme Court in the case of State Bank of India Vs. Raj Kumar reported in (2010) 11 SCC 611 wherein Hon'ble Supreme Court held that the date of the application is to be considered.
9. He has also relied upon the judgment of Hon'ble Supreme Court in the case of Union of India and Another Vs. B. Kishore reported in 2011 (13) SCC 131, the Apex Court in the abovesaid decision held that indigence of dependants of deceased employee is first precondition to bring their case under the scheme of compassionate appointment and that absence of indigence would turn compassionate appointment reservation in favour of dependents of employee who died while in service, which would be directly in conflict with the ideal of equality guaranteed under Arts. 14 & 16 of Constitution. Para 7 of the said decision is as follows :-
“7. The Central Government issued revised and consolidated instructions in connection with the scheme of compassionate appointments under the Central Government vide Office Memorandum dated October 9, 1998. Clause 1 of the Office Memorandum describes the object of the Scheme as under:-
“The object of the Scheme is to grant appointment on compassionate grounds to a dependent family member of a Government servant dying in harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood to relieve the family of the Government servant concerned from financial destitution and to help it get over the emergency.”
(emphasis added) Clause 5 lays down the eligibility criterion and provides as follows:-
“(a) The family is indigent and deserves immediate assistance for relief from financial destitution; and (b) Applicant for compassionate appointment shall be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules.”
(emphasis added) Clause 7 deals with availability of vacancies and sub-clause (b) provides as follows:-
“(b) Compassionate appointments can be made upto a maximum of 5% of vacancies falling under direct recruitment quota in any Group ‘C’ or ‘D’ post. The appointing authority may hold back 5% of vacancies in the aforesaid categories to be filled by direct recruitment through Staff Selection Commission or otherwise so as to fill such vacancies by appointment on compassionate grounds.”
10. I have heard Mr. KG Pandit, learned counsel for the petitioner and Mr. HS Soni, learned Assistant Government Pleader for the respondent. The first contention raised by the learned counsel for the petitioner regarding the Government Resolution / circular dated 29.03.2007, before proceeding with the matter, it is very clear that the compassionate appointment is for the benefit of the government employees who have died during the course of employment and who have faced the era of crises out of the said circumstances.
11. It is also very clear that scheme of the compassionate appointment, this is neither the statutory nor the fundamental right of the petitioner under Article 226 of the Constitution of India.
12. The scope of Article 226 of the Constitution of India is whether the scheme of the compassionate appointment is considered by the employer or by the Government or that whether the petitioner is entitled for the said scheme according to the condition put forward in the scheme or not.
13. In that view of the matter, learned counsel for the petitioner has requested that the first contention of the learned counsel for the petitioner regarding circular is required to be quashed and set aside.
14. In my view, for the High Court under Article 226 of the Constitution of India, it will not be appropriate to quash and set aside the same. It is for the employer or by the government to decide that the employee/employees is/are entitled for compassionate appointment or not.
15. The second contention raised by learned counsel for the petitioner regarding arbitrary power of the officers and the selection by pick and choose policy, in my view this will depend upon in each cases that if the amount being received by the dependent is on higher side, it is on employer to decide and in each case, the dependent is not getting any compensation and there are many dependents, it will be decided by the Government that whether the condition of crises has been occurred or not. According to the opinion of the Government in all of cases, there are monthly income of the petitioners are more than Rs. 8,000/- and there are 2-4 dependents.
16. The contention of learned counsel for the petitioner regarding per month pension and benefits which are granted to the family of the petitioner is according to the policy of government and they are paid pursuant to the payment made and which has been given for the service rendered. In my view the amount received by the family of the deceased employee by way of compensation, the said family can survive in the condition of crises.
17. I am of the opinion that the view taken by the State Government is just and proper and no interference is called for.
18. In my view there is 4 cases where the petitioners are falling within the criteria laid down by the Government Policy. In that view of the matter, I am of the view that decision of Hon'ble Supreme court and even since the petitioner has received reasonable amount towards compensation and other retiral benefits, it will not be appropriate to issue any writ more particularly in view of Para 7 of the judgment rendered in Union of India and Another Vs.
B. Kishore's case (supra), the petitions deserve to be dismissed and the same are dismissed accordingly.
(K.S. Jhaveri, J.) Amar