1 IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.595 OF 2007 NO.595 OF 2007 NO.595 OF 2007 MRS. MRS. MRS. SEEMA RAO SEEMA RAO SEEMA RAO ......... PETITIONER. PETITIONER. PETITIONER. VS. VS. VS. UNION UNION UNION OF INDIA AND ORS. OF INDIA AND ORS. OF INDIA AND ORS. ......... RESPONDENTS. RESPONDENTS. RESPONDENTS. S.K.JAIN S.K.JAIN S.K.JAIN FOR FOR FOR THE PETITIONER. THE PETITIONER. THE PETITIONER. R.R.SHETTY R.R.SHETTY R.R.SHETTY WITH WITH WITH MR. N.R.PRAJAPATI FOR RESPONDENTS. MR. N.R.PRAJAPATI FOR RESPONDENTS. MR. N.R.PRAJAPATI FOR RESPONDENTS. ..... ..... ..... CORAM CORAM CORAM : : : J.N.Patel and A.A.Sayed, JJ. J.N.Patel and A.A.Sayed, JJ. J.N.Patel and A.A.Sayed, JJ. DATE DATE DATE : July 25, 2007. : July 25, 2007. : July 25, 2007. ..... ..... ..... P.C. P.C. P.C. 1.1.1. Heard Heard Heard the learned Counsel for the parties. the learned Counsel for the parties. the learned Counsel for the parties. By By By consent, we propose to finally dispose of this consent, we propose to finally dispose of this consent, we propose to finally dispose of this petition petition petition at the stage of admission. at the stage of admission. at the stage of admission. 2 2.2.2. The Petitioner has approached this Court seeking The Petitioner has approached this Court seeking The Petitioner has approached this Court seeking writ writ writ of mandamus and certiorari challenging the of mandamus and certiorari challenging the of mandamus and certiorari challenging the impugned impugned impugned Order, dated 25.9.2006 passed by the Order, dated 25.9.2006 passed by the Order, dated 25.9.2006 passed by the Respondent Respondent Respondent No.3 No.3 No.3 and a direction to the Respondent for and a direction to the Respondent for and a direction to the Respondent for appointment appointment appointment of of of the Petitioner on compassionate ground the Petitioner on compassionate ground the Petitioner on compassionate ground on on on any suitable post, within a stipulated period and any suitable post, within a stipulated period and any suitable post, within a stipulated period and also also also seeks compensation for delay in considering her seeks compensation for delay in considering her seeks compensation for delay in considering her case case case for appointment on compassionate ground. for appointment on compassionate ground. for appointment on compassionate ground. 3.3.3. The The The Petitioner’s husband late Mulkul N. Rao, Petitioner’s husband late Mulkul N. Rao, Petitioner’s husband late Mulkul N. Rao, Superintendent Superintendent Superintendent of Customs, met with a train accident of Customs, met with a train accident of Customs, met with a train accident and and and died in harness on 29.4.1998. On 8.5.1998, the died in harness on 29.4.1998. On 8.5.1998, the died in harness on 29.4.1998. On 8.5.1998, the Petitioner Petitioner Petitioner applied to the Assistant Commissioner of applied to the Assistant Commissioner of applied to the Assistant Commissioner of Customs, Customs, Customs, Personnel and Establishment Department, Personnel and Establishment Department, Personnel and Establishment Department, Mumbai Mumbai Mumbai for giving an appointment on compassionate for giving an appointment on compassionate for giving an appointment on compassionate ground ground ground as the Petitioner had two small children and as the Petitioner had two small children and as the Petitioner had two small children and no no no source of livelihood. The Assistant Commissioner source of livelihood. The Assistant Commissioner source of livelihood. The Assistant Commissioner of of of Customs, Personnel and Establishment Department, Customs, Personnel and Establishment Department, Customs, Personnel and Establishment Department, rejected rejected rejected the request of the petitioner for the request of the petitioner for the request of the petitioner for compassionate compassionate compassionate appointment to the post of appointment to the post of appointment to the post of Examiner/Preventive Examiner/Preventive Examiner/Preventive Officer. The Petitioner then Officer. The Petitioner then Officer. The Petitioner then requested requested requested the the the Dy. Commissioner of Customs, Personnel Dy. Commissioner of Customs, Personnel Dy. Commissioner of Customs, Personnel & Establishment Dept. for appointment on Establishment Dept. for appointment on Establishment Dept. for appointment on compassionate compassionate compassionate ground and as Petitioner did not ground and as Petitioner did not ground and as Petitioner did not receive receive receive any response in the matter, she moved to any response in the matter, she moved to any response in the matter, she moved to Superior Superior Superior Authorities. On 28.5.1999, the Petitioner Authorities. On 28.5.1999, the Petitioner Authorities. On 28.5.1999, the Petitioner 3 also also also shown her willingness to be appointed on shown her willingness to be appointed on shown her willingness to be appointed on compassionate compassionate compassionate ground on the post of clerk/typist. ground on the post of clerk/typist. ground on the post of clerk/typist. But But But on 25.6.1999, she was informed that her request on 25.6.1999, she was informed that her request on 25.6.1999, she was informed that her request for for for being appointed on compassionate ground as Lower being appointed on compassionate ground as Lower being appointed on compassionate ground as Lower Divisional Divisional Divisional Clerk/ Typist is not accepted. The Clerk/ Typist is not accepted. The Clerk/ Typist is not accepted. The Petitioner Petitioner Petitioner again made a representation to the again made a representation to the again made a representation to the concerned concerned concerned Authority, but unfortunately the same was Authority, but unfortunately the same was Authority, but unfortunately the same was turned turned turned down. Therefore, the Petitioner directly down. Therefore, the Petitioner directly down. Therefore, the Petitioner directly approached approached approached the the the Honourable Supreme Court under Article Honourable Supreme Court under Article Honourable Supreme Court under Article 32 32 32 of the Constitution of India, assailing the Order of the Constitution of India, assailing the Order of the Constitution of India, assailing the Order dated dated dated 15.7.2004 issued by the Ministry concerned, 15.7.2004 issued by the Ministry concerned, 15.7.2004 issued by the Ministry concerned, which which which was communicated on 13.9.2004. The Supreme was communicated on 13.9.2004. The Supreme was communicated on 13.9.2004. The Supreme Court Court Court permitted the Petitioner to withdraw the permitted the Petitioner to withdraw the permitted the Petitioner to withdraw the Petition Petition Petition and to approach this Court, which led to and to approach this Court, which led to and to approach this Court, which led to filing filing filing of Writ Petition No. 484 of 2007 by the of Writ Petition No. 484 of 2007 by the of Writ Petition No. 484 of 2007 by the Petitioner. Petitioner. Petitioner. This Court allowed the Petition by This Court allowed the Petition by This Court allowed the Petition by directing directing directing the Respondents to take decision in the the Respondents to take decision in the the Respondents to take decision in the case case case of the Petition within three months, after of the Petition within three months, after of the Petition within three months, after reconsidering reconsidering reconsidering the case of the Petitioner for the case of the Petitioner for the case of the Petitioner for appointment appointment appointment on compassionate ground against a on compassionate ground against a on compassionate ground against a suitable suitable suitable post. Pursuant to this Order, the post. Pursuant to this Order, the post. Pursuant to this Order, the Commissioner Commissioner Commissioner of Customs Division Mumbai passed an of Customs Division Mumbai passed an of Customs Division Mumbai passed an Order Order Order contrary to her claim that compassionate contrary to her claim that compassionate contrary to her claim that compassionate appointment appointment appointment cannot be considered and the case was cannot be considered and the case was cannot be considered and the case was closed closed closed in the light of DOPT OM NO. 14014/19/2002 in the light of DOPT OM NO. 14014/19/2002 in the light of DOPT OM NO. 14014/19/2002 ESTT.dated ESTT.dated ESTT.dated 5.5.2003 and Boards Instructions issued 5.5.2003 and Boards Instructions issued 5.5.2003 and Boards Instructions issued 4 vide vide vide F.No.A 12012/67/2004 AD IIIB dated 15.7.2004, F.No.A 12012/67/2004 AD IIIB dated 15.7.2004, F.No.A 12012/67/2004 AD IIIB dated 15.7.2004, according according according to to to which all cases of Compassionate Grounds which all cases of Compassionate Grounds which all cases of Compassionate Grounds pending pending pending for more than three years are to be closed, for more than three years are to be closed, for more than three years are to be closed, which which which is the subject matter of challenge before this is the subject matter of challenge before this is the subject matter of challenge before this Court. Court. Court. 4.4.4. The The The facts are not disputed except that the facts are not disputed except that the facts are not disputed except that the petition petition petition does not qualify for being considered to be does not qualify for being considered to be does not qualify for being considered to be appointed appointed appointed on compassionate ground. on compassionate ground. on compassionate ground. 5.5.5. A preliminary issue was raised before us as preliminary issue was raised before us as preliminary issue was raised before us as toto to the maintainability of the petition, by the the maintainability of the petition, by the the maintainability of the petition, by the learned learned learned Counsel for the Respondents by citing the Counsel for the Respondents by citing the Counsel for the Respondents by citing the case case case of KENDRIYA VIDYALAYA SANGHATAN & ANR. VS. of KENDRIYA VIDYALAYA SANGHATAN & ANR. VS. of KENDRIYA VIDYALAYA SANGHATAN & ANR. VS. SUBHAS SUBHAS SUBHAS SHARMA ETC. REPORTED IN ALL INDIA SERVICES SHARMA ETC. REPORTED IN ALL INDIA SERVICES SHARMA ETC. REPORTED IN ALL INDIA SERVICES LAW LAW LAW JOURNAL, VII-2002(2), PAGE 296. It is submitted JOURNAL, VII-2002(2), PAGE 296. It is submitted JOURNAL, VII-2002(2), PAGE 296. It is submitted that that that an appropriate remedy for the Petitioner would an appropriate remedy for the Petitioner would an appropriate remedy for the Petitioner would be be be to approach the Central Administrative Tribunal to approach the Central Administrative Tribunal to approach the Central Administrative Tribunal and and and this Court should direct the Petition to be this Court should direct the Petition to be this Court should direct the Petition to be transferred transferred transferred to the Central Administrative Tribunal. to the Central Administrative Tribunal. to the Central Administrative Tribunal. 6.6.6. The The The learned Counsel appearing for the learned Counsel appearing for the learned Counsel appearing for the Petitioner Petitioner Petitioner submitted that this preliminary issue was submitted that this preliminary issue was submitted that this preliminary issue was raised raised raised at very belated stage and on the earlier at very belated stage and on the earlier at very belated stage and on the earlier occasions, occasions, occasions, the Respondents have not objected is the the Respondents have not objected is the the Respondents have not objected is the jurisdiction jurisdiction jurisdiction of of of this Court, when the matter was taken this Court, when the matter was taken this Court, when the matter was taken 5 up up up and and and disposed by issuing specific directions to the disposed by issuing specific directions to the disposed by issuing specific directions to the Respondents Respondents Respondents in the matter of reconsidering the case in the matter of reconsidering the case in the matter of reconsidering the case of of of the Petitioner for being appointed on the Petitioner for being appointed on the Petitioner for being appointed on compassionate compassionate compassionate ground. ground. ground. 7.7.7. In In In our view, as so much of time has passed our view, as so much of time has passed our view, as so much of time has passed away away away litigating on the issue, we do not propose to litigating on the issue, we do not propose to litigating on the issue, we do not propose to consider consider consider the issue of jurisdiction as the petitioner the issue of jurisdiction as the petitioner the issue of jurisdiction as the petitioner has has has invoked the Extra Ordinary Jurisdiction of this invoked the Extra Ordinary Jurisdiction of this invoked the Extra Ordinary Jurisdiction of this Court Court Court under Article 226 and 227 of Constitution of under Article 226 and 227 of Constitution of under Article 226 and 227 of Constitution of India, India, India, and, therefore, we proceed to consider her and, therefore, we proceed to consider her and, therefore, we proceed to consider her case. case. case. 8.8.8. We We We have gone through the impugned Order and have gone through the impugned Order and have gone through the impugned Order and we we we find find find that the Respondents Authority has considered that the Respondents Authority has considered that the Respondents Authority has considered the the the case of the Petitioner in accordance with the case of the Petitioner in accordance with the case of the Petitioner in accordance with the Government Government Government Policy in respect of the appointment of Policy in respect of the appointment of Policy in respect of the appointment of the the the persons on compassionate ground. We do not find persons on compassionate ground. We do not find persons on compassionate ground. We do not find that that that the impugned Order, rejecting the claim of the the impugned Order, rejecting the claim of the the impugned Order, rejecting the claim of the Petitioner Petitioner Petitioner for considering her case for appointment for considering her case for appointment for considering her case for appointment on on on compassionate ground, has not been dealt with in compassionate ground, has not been dealt with in compassionate ground, has not been dealt with in accordance accordance accordance with the Policy adopted by the Department with the Policy adopted by the Department with the Policy adopted by the Department for for for appointing persons on compassionate ground. On appointing persons on compassionate ground. On appointing persons on compassionate ground. On earlier earlier earlier occasions, when the Petitioner had approached occasions, when the Petitioner had approached occasions, when the Petitioner had approached this this this Court, this Court made an exception in case of Court, this Court made an exception in case of Court, this Court made an exception in case of the the the Petitioner, rather than coming to a conclusion Petitioner, rather than coming to a conclusion Petitioner, rather than coming to a conclusion 6 that that that the decision of the Respondents was improper or the decision of the Respondents was improper or the decision of the Respondents was improper or illegal illegal illegal or contrary to the Policy in rejecting the or contrary to the Policy in rejecting the or contrary to the Policy in rejecting the claim claim claim of the Petitioner. A direction issued by this of the Petitioner. A direction issued by this of the Petitioner. A direction issued by this Court Court Court to reconsider her case was just to give one to reconsider her case was just to give one to reconsider her case was just to give one more more more opportunity opportunity opportunity to the Petitioner to make out a case to the Petitioner to make out a case to the Petitioner to make out a case for for for reconsideration reconsideration reconsideration before the concerned Authorities. before the concerned Authorities. before the concerned Authorities. The The The Authority has, after reconsidering her case, Authority has, after reconsidering her case, Authority has, after reconsidering her case, found found found that the Petitioner is not eligible for being that the Petitioner is not eligible for being that the Petitioner is not eligible for being appointed appointed appointed on compassionate ground. on compassionate ground. on compassionate ground. 9.9.9. We We We find that the court has a very limited find that the court has a very limited find that the court has a very limited jurisdiction jurisdiction jurisdiction while while while considering such matters and while considering such matters and while considering such matters and while examining examining examining such cases it can only find whether the such cases it can only find whether the such cases it can only find whether the decision decision decision making process rejecting the application of making process rejecting the application of making process rejecting the application of the the the petitioner was vitiated or not is not in petitioner was vitiated or not is not in petitioner was vitiated or not is not in conformity conformity conformity with the scheme framed by the Department. with the scheme framed by the Department. with the scheme framed by the Department. As As As we do not find it to be so, we do not propose to we do not find it to be so, we do not propose to we do not find it to be so, we do not propose to interfere interfere interfere with the decision taken by the Respondents. with the decision taken by the Respondents. with the decision taken by the Respondents. 10. 10. 10. We We We may also cite the Authority on the may also cite the Authority on the may also cite the Authority on the subject, subject, subject, which further clarify the principles laid which further clarify the principles laid which further clarify the principles laid down down down by the Supreme Court while considering the case by the Supreme Court while considering the case by the Supreme Court while considering the case for for for compassionate appointment in a recent decision, compassionate appointment in a recent decision, compassionate appointment in a recent decision, rendered rendered rendered in the case of STATE BANK OF INDIA AND in the case of STATE BANK OF INDIA AND in the case of STATE BANK OF INDIA AND ANOTHER ANOTHER ANOTHER VS. SOMVIR SINGH, REPORTED IN (2007) 4 SCC VS. SOMVIR SINGH, REPORTED IN (2007) 4 SCC VS. SOMVIR SINGH, REPORTED IN (2007) 4 SCC 778. 778. 778. 7 11. 11. 11. Consequently, Consequently, Consequently, the petition is dismissed in the petition is dismissed in the petition is dismissed in limine. limine. limine. ..... ..... ..... [J.N.Patel, [J.N.Patel, [J.N.Patel, J.] J.] J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]