1. By way of this petition, the petitioner has prayed for following reliefs:
"(A) Admit this petition.
(B) Quash and set aside order dated 20.10.2011 Annexure I by holding it as unjust, improper and bad in law and direct respondents herein to consider the case of the petitioner a fresh on the basis of the policy which was prevailing at the time of death of her mother 19.5.2008 and the date of application 5.8.2008 and offer compassionate appointment to the petitioner immediately.
(C) Quash and set aside GR dated 5.7.2011 in so far as it relates to clause 5 giving retrospective effect to the scheme introduced by said Resolution by declaring it as unjust, improper and bad in law by declaring that this has been done by th e respondents only with a view to nullifying the decisions of the Hon'ble Apex Court that the case of dependents seeking appointment on compassionate appointment are required to be decided as per the policy prevailing at the time of death of concerned Government employees.
(D) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to stay clause (5) of GR dated 5.7.2011 Annexure J and direct respondents to decide case of petitioner a fresh on the basis of the policy which was prevailing at the time of death of her mother 19.5.2008 and the date of application 5.8.2008 and offer compassionate appointment to the petitioner immediately."
2. The case of the petitioner is that petitioner mother was serving with the respondent No.4 as Staff Nurse had expired 19.05.2008. The petitioner applied for appointment on compassionate basis on 05.08.2008. However, the application of the petitioner was kept pending till 2011 and the same was rejected on 28.10.2011.
3. The ld. Counsel for the petitioner submitted that the rejection order of the respondent is contrary to Supreme Court decision reported in (2000) 6 SCC 493 reproduced. The relevant portion of para 13 reads as under:
"The Family Benefit Scheme cannot in any way be equated with compassionate appointment. The sudden jerk in the family by reason of the death of the breadearner can only be absorbed by the family by lump-sum amount provided to it - this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns, and at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the breadearner but that would undoubtedly bring some solace to the situation."
4. Ld.
Counsel for the respondent contended that the petition is not maintainable in view of the observations made in para 13 of the decision of the Supreme Court reported in (2010) 11 SCC, page 661, in the case of State Bank of India Vs. Rajkumar, which reads as under:
"13. Further, where the earlier scheme is abolished and the new scheme which replaces it specifically provides that all pending applications will be considered only in terms of the new scheme, then the new scheme alone will apply. As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts."
He has also relied upon Division Bench judgment rendered in LPA 526 of 2012 dated 12.04.2012, more particularly Para 5 of the said decision, which reads as under.
"5. The upshot of the above discussion of facts and law is that the ratio of the decision in State Bank of India (supra) would squarely apply in the present cases, rather than the previous judgment of Division Bench of this Court. According to the factual data submitted by the respondents themselves, except one application dated 27.7.2001 of one of the respondents, all the other applications for compassionate appointment were made in the years 2008, 2009, 2010 and 2011. During pendency of those applications, resolution dated 05.07.2011 has been issued and the scheme for compassionate appointment is abolished and substituted by the scheme for payment of lump sum financial assistance. Therefore, following the ratio of the judgment of the Apex Court in State Bank of India (supra), the relief to which the respondents would be legally entitled would be to avail the benefit of the new scheme under resolution dated 05.07.2011. Since learned Advocate General has made the statement that all the applications for compassionate appointment of the respondents, except one dated 27.7.2001, are pending and would be considered under the new scheme, no order in that regard is required to be made. Therefore, upon consideration of the aforesaid applications, the decision and the benefit due under the scheme to the applicants shall have to be conveyed or paid, as the case may be, within a period of three months of receipt of a copy of this order."
5. Considering the averments on record and the decision taken by the respondent authority is inconsistent with the policy and hence, no interference is called for. However, the order dated 20.10.2011, the Competent Authority will decide the application, which is pending before it. He will decide it within 3 months from the date of receipt of the order of this Court. The petition stands disposed of.
[K S JHAVERI, J] Ankit* Top