IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13825 of 2005 ASHOK KUMAR SAH Versus THE UNION OF INDIA & ORS ------ For the petitioner: Mr. Purushottam Jha For the B.S.N.L. : Mr. Jawahar Prasad Karn -- 4. 3.9.2008 Heard learned counsel for the petitioner and learned counsel for the Bharat Sanchar Nigam Limited. The petitioner seeks quashing of the impugned order dated 28.10.2002 (Annexure-5), by which the application for appointment on compassionate ground of the petitioner has been rejected. The petitioner’s father was a class-IV employee in B.S.N.L. and died on 7.5.1999 while still in service. On the death of the said employee, an application for compassionate appointment was made. The claim of the petitioner is that one of the sons of the deceased employee was running a bicycle repairing shop on a foot- path and living separately while the petitioner is the other son. Apart from the widow of the deceased another son and daughter-in-law of the said employee predeceased him leaving behind a son and a daughter who were also dependents upon the widow, and the petitioner, who is also married, has two daughters and two sons. The application was made on 1.5.2000 itself and whatever papers and documents were demanded by the B.S.N.L were supplied by the petitioner. However, by the impugned order dated 28.10.2002 ( Annexure-5), the same was rejected for the reasons that the elder son running a bicycle repairing shop and earning Rs.2,000/- per month, the family pension is Rs.2146/- and the other 2 terminal benefits to the extent of Rs. 1,19,219/- were paid. It was further stated in the rejection order that the family members of the deceased employee were residing in their own house and there is no major liability in the family and thus they are not in indigent condition and, accordingly, the High Powered Committee had rejected the application. Learned counsel for the petitioner submits that the reasons assigned in the order of rejection are not germane to the consideration of application for appointment on compassionate ground. It is submitted that upon the death of every Government employee the widow is a recipient of the family pension and other death-cum- retirement benefits. Keeping the same into consideration, the policy has been taken by the Government and semi Government organizations for making appointment on compassionate ground. Hence, the inclusion of the said terminal benefits for rejecting the prayer for compassionate appointment is wholly misconceived. It is submitted that in any case, the amount of terminal benefits and family pension as stated above, are not such as to meet the entire needs of the dependents of the deceased employee, who was a mere class-IV employee. It is further submitted by learned counsel for the petitioner that the fact that the elder son of the deceased employee was running a bicycle repairing shop and earning Rs.2000/- per month was also not germane for consideration of the matter, since admittedly he was married and living separately from the life time of his father. In support of the aforesaid submissions, learned counsel for the petitioner relies upon a decision of this Court in the case of Ved 3 Narayan Yadav V. The State of Bihar & others : 1998 (2) All PLR 277 in which a learned single Judge of this Court ( Mr. B.N. Agrawal, J. as his Lordship then was ) in paragraph no.4 has held as follows: ”4. Learned counsel for the petitioner submitted that according to the Government circular dated 18.2.1995, appointment on compassionate ground cannot be denied on the ground that other son of the Government servant has been already employed, in cases where the son who has been already employed is separate from the family and is not maintaining them. In the present case, it has been stated that separated son is not maintaining the family. In support of this submission, reliance has been placed on the decision in Bharat Prasad Vs. State of Bihar and others (1998 (1) P.L.J.R.,125) wherein, in view of the aforesaid circular, direction has been given for appointment on compassionate ground. In my view, the petitioner’s case is squarely covered by the aforesaid decision of this Court.” Learned counsel for the petitioner also relies upon a decision of a three-Judges Bench of the Supreme Court in the case of Smt. Phoolwati v. Union of India and others: 1991 (1) PLJR (SC) 77 in which the Apex Court after considering the various amounts received as terminal benefits by the appellant of that case directed the Union of India to take immediate steps for employing the second son of the appellant on a suitable post commensurate with the educational qualification along with a further direction that the appellant should be permitted to stay in the quarter where she was presently residing. Learned counsel for the B.S.N.L., on the other hand submits on the basis of the Scheme for compassionate appointment as applicable earlier to the Telecommunication Department and now the B.S.N.L. that 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 4 welfare schemes mentioned therein ) and all other relevant factors such as the presence of an earning member, size of the family, ages of the children and the essential needs of the family, etc. He also relies upon a decision of the Supreme Court in the case of State of J. & K. V. Sajad Ahmed Mir : A.I.R. 2006 SCW 3708 in which the claim of the respondent for compassionate appointment was dismissed by the Apex Court on the ground of delay and laches observing that the said fact is relevant to show that the family survived in spite of death of the employee, since the appointment on compassionate ground cannot be claimed as a matter of right at the cost of interest of others. On a consideration of the facts and circumstances of the case, this Court finds sufficient force in the submissions of learned counsel for the petitioner. It is evident from the materials on the record that the deceased employee had died leaving behind a number of dependents many of whom were kids and school going who needed to be looked- after by the surviving members of the family. The said matter has not at all been taken into consideration in the impugned order. Moreover, except the finding that the family of the deceased employee was residing in its own house, it has not been shown what sources of income were available to the family to maintain itself. Apart from the family pension and the terminal benefits of Rs. 1,19,219/- received by the widow, the impugned order has completely gone wrong in taking into consideration the earning of the other son of the deceased employee to the tune of Rs.2000/- per month when it is the admitted position that he was living separately and running a bicycle repairing shop on a foot- 5 path. It is evident that whatever finding regarding income has been recorded is in the nature of terminal benefits and the same are not substantial amounts and it cannot be a good reason for denying the appointment on compassionate ground to the dependent of a deceased class IV employee. If such yard-stick is applied, then hardly any person would be entitled to compassionate appointment under the Government or semi Government Organizations. In this regard the cases cited by learned counsel for the petitioner fully support the stand taken by him. So far as reliance placed by learned counsel for the BSNL on the guidelines regarding the Scheme of compassionate appointment is concerned, it does not appear that the authorities have made a balanced and objective assessment of the financial condition of the family and the family pension and terminal benefits received by the widow cannot be a ground for rejection of the application of the petitioner for appointment on compassionate ground considering that the same was insufficient to meet the needs of the several dependents of the deceased employee. Even the said guidelines regarding compassionate appointment clearly states that an application for compassionate appointment should not be rejected merely on the ground that the family of the deceased employee has received benefits of the various welfare Schemes. It appears that the authorities have acted contrary to the said guidelines. The reliance by learned counsel for the BSNL upon the case of Sajad Ahmed Mir (supra) also can be of no avail since in the 6 said matter the very application for appointment on compassionate ground had been filed 4 ½ years after the death of the father of the applicant and even after rejection of the same, it took him as many as three years in filing the writ petition before the High Court which was initially dismissed by a learned single Judge Bench and subsequently allowed by a Division Bench after 15 years of the death of the deceased employee. The facts of the present case do not show any delay and laches on the part of the petitioner. Immediately after the rejection of his application for compassionate appointment, the petitioner had approached, under wrong legal advice, the Central Administrative Tribunal which by its order dated 11.11.2004 dismissed the petition as withdrawn since the same was found not maintainable before the Tribunal with a liberty to approach the appropriate forum. Thereafter the writ application has been filed in the year 2005. Thus, on a consideration of the facts and circumstances of the case, the writ application is allowed, the impugned order dated 20.10.2002 (Annexure-5) is quashed and the authorities of the B.S.N.L. are directed to appoint the petitioner on compassionate ground on a post commensurate with his educational qualification within a period of two months from the date of receipt/ production of a copy of this order. VPS ( Ramesh Kumar Datta,J.)