Sanjay Bahadur v. The Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SUVRA GHOSH AND HON'BLE JUSTICE SUBHENDU SAMANTA WPCT /51/ 2023 Shri Sanjay Bahadur ... Petitioner

Versus

The Union of India and others ... Respondents For the Petitioner : Mr.K.M.B.Jayapal For the Respondents : Mr.Shatadru Chakraborty Mr. Dibesh Dwivedi Heard on : October 10, 2023 & 11, 2023 Judgment on : October 16, 2023 Subhendu Samanta, J.

1.

The instant Writ Petition has been preferred against an order dated 15.09.2023 passed by the Central Administrative Tribunal Kolkata Bench (Circuit at Port Blair) in O.A No.351/1483/2020.

2.

The brief fact of the case is that, the father of the petitioner was a Police Constable working in Police Department Andaman & Nicobar Police who expired on 08.04.2014. The Mother of the petitioner namely Vijay Laxmi made a prayer for an appointment in the Andaman & Nicobar Police Department

on compassionate ground in favour of the petitioner on 21.07.2014. The office of the Director General of Police vide Memo dated 01.11.2014 has informed the mother of the petitioner that her prayer was considered by the Committee carefully but rejected. The memo dated 01.11.2014 is set out as follows: - "With reference to your application requesting appointment in Police Department on compassionate ground dated 21.07.2014, you are hereby informed that your case was placed for consideration before the Committee met on 07.10.2014. Your case was considered by the Committee carefully but rejected.

Further you are informed that few positions of Home Guard volunteer are available in the Home Guard Organization. If you are interested and willing to enlist as Home Guard may give your willingness to the undersigned at the earliest."

3.

Thereafter, the petitioner approached the authority for the same prayer and the case of the petitioner was examined and not considered thrice.

4.

Being aggrieved by the said refusal of the authority, the petitioner preferred an O.A before the Central Administrative Tribunal for necessary direction upon the Police Authority so that the petitioner may be appointed on compassionate ground. The Central Administrative Tribunal has dismissed the O.A on the ground that the same lacks merit. Being aggrieved by the impugned order passed by the Central Administrative Tribunal,

the petitioner appears before this Division Bench for appropriate relief.

5.

Learned Advocate for the petitioner submits that the impugned order passed by the learned Central Administrative Tribunal is not tenable in the eye of law. The Central Administrative Tribunal has failed to appreciate the action of the respondent authorities in holding that as thrice Screening Committee did not recommend the case of the Writ Petitioner, he could not be considered for appointment under compassionate ground. It is the argument of the learned Advocate for the petitioner that no one in the family member of the Writ Petitioner are Government servant and they are actually starving. If the petitioner is not allowed to be appointed under the compassionate ground, the sole purpose for provisions of appointment under the compassionate ground would be frustrated. The finding of the Screening Committee is perverse. The family pension which was awarded due to the death of the father of the petitioner cannot be considered to be a ground for denial of the compassionate appointment of the petitioner.

6.

Learned Advocate for the respondent authority submits that the case of the petitioner was considered three times. The Screening Committee has rejected the prayer of the petitioner by assigning sufficient reason. The appointment on compassionate

ground is not a fundamental right. The petitioner was initially informed to give his willingness regarding his appointment for Home Guard Organization. The petitioner has failed to avail such opportunity. The screening Committee has sufficiently observed the merits of the candidates and after observing the merits of each and every case, they used to recommend the names for compassionate appointment. It has been observed by the Screening committee that the petitioner has their own house and they are availing family pension in enhanced rate. Thus, it can be said that the family is not in economic distress warranting appointment on compassionate ground. Learned Advocate has also referred a Memorandum of the Andaman & Nicobar Administration dated 27.05.2013 regarding the guidelines for appointment on compassionate ground. 7.

In reply, learned Advocate for the petitioner submits that if the required posts are not available in the department, the concerned authority may be directed to accommodate the petitioner by virtue of the decision of the Hon'ble Supreme Court in Smt. Sushma Gosain and ors. Vs. Union of India and ors. reported (1989) 4 Supreme Court Cases 468.

8.

Heard the learned Advocates. Perused the impugned order passed by learned Central Administrative Tribunal. Perused the

prayer of the petitioner. Also perused the relevant documents made as annexures alongwith Writ Petition.

9.

It appears that the C.O was preferred before the learned Tribunal on the ground that the representation of the mother of the petitioner namely Smt. Vijay Laxmi was not considered by the respondents. The petitioner also made prayer before the learned Tribunal that the respondents have issued Memorandum containing inter alia that the case of the petitioner would be considered under Home Guard Organization as volunteers which only remained in papers but no effective step was taken till now by which the petitioner is suffering. It was further case of the petitioner before the learned Tribunal that several similarly circumstanced citizens having identical grievance were conferred with compassionate appointment by the authority concerned.

10.

In disposing the O.A the authority is of opinion that the claim of the applicant regarding non consideration of the prayer of the mother of the petitioner is not correct as the concerned authority has considered the prayer of the petitioner more than three times. The Screening Committee did not find him fit for recommendation comparing to the other claims of the respective years. Thus, his prayer was rejected. The learned Tribunal is of opinion that the petitioner has not submitted his willingness to

the authority concerned to work as a Home Guard volunteer as offered to him vide the impugned Memo dated 01.11.2014 and 07.12.2015.

11.

The learned tribunal is also of the opinion that the screening committee has assigned due reason for not recommending him for appointment on compassionate ground and the finding of the screening committee appears to be justified to the tribunal.

12.

Let us consider whether the observation of the learned tribunal denying the prayer of the present petitioner is justified in the eye of law. It is true that the prayer of the petitioner was considered by the screening committee more than three times denying the case of the present petitioner, the screening committee is of opinion that the mother of the petitioner Smt. Vijaya Laxmi is getting the family pension and his family is residing in a house constructed by her husband in the landed property owned by the grandmother of her husband. They are also in view that there is no economic distress warrants appointment on compassionate ground as per the provision of GOI, MOP, PG and P (DOPT) office memorandum dated 5th May 13.

It further appears to me that when the case of the petitioner was considered by the concerned department, the department vide memo dated 1st November has

specifically instructed the petitioner that if he want to avail his appointment as Home guard volunteers, and if he is so interested, he must give his willingness to the concerned authority at the earliest. Till today, no such willingness was given by the petitioner to the concerned authority. The learned Tribunal has considered this fact and is of view that the petitioner's case is beyond merit.

14.

We have gone through the ratio laid down by the Hon'ble Apex Court in Smt. Sushma Gosain and ors. Vs Union of India and Ors. (Supra). In the case of Sushma Gosain, it appears that the petitioner before the Apex Court has made an application for compassionate appointment as LDC in November, 1982. She had right to have been considered for an appointment on compassionate ground under the government memorandum. In 1983, she passed trade test and interview conducted by the DGBR. There is absolutely no reason to make her wait till 1985 when the ban on appointment of ladies was imposed. The denial of appointment of Sushma Gosain is tentatively arbitrary. Thus, the matter was considered by the Hon'ble Apex Court. 15.

The case of the present petitioner is distinct to that of Sushma Gosain. Thus, the ratio laid down by the Hon'ble Apex Court is not at all applicable.

16.

We have perused the entire case record including the observation of the screening committee of several candidates.

The candidates standing on the similar circumstances were also denied appointment on compassionate ground by the screening committee and basically the families in immediate economic distress were given appointment on compassionate ground. 17.

It further appears that the family of Vijay Laxmi is getting family pension on enhanced rate and they are living in their own house over the land owned by them. Thus, at this juncture, the observation of the screening committee appears to be justified. 18.

We find no reason to interfere with the observation of the learned State Administrative Tribunal. Accordingly, the instant WPCT/51/2023 is dismissed as devoid of merit. 19.

The result of this Writ petition shall not debar the petitioner to prefer similar prayer before the concerned authority if situations arise in future.

20.

Connected CAN application, if any, are also disposed of. 21.

Urgent Xerox certified copy of this judgement be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities.

I agree (Suvra Ghosh, J) (Subhendu Samanta, J.)