V. Sathyanarayana Murthy vs The Assistant Director, General (Pers IV) Bharat Sanchar Nigam Limited, The Deputy General Manager, (Administration) Bharat Sanchar Nigam Ltd., The Assistant General Manager, (Establishment), Bharat Sanchar Nigam Ltd. and The Sub Divisional Engineer (SR and SG)

A. Kulasekaran, J.—This writ petition has been filed for issuance of a writ of certiorarified mandamus to call for all relevant records relating

to the impugned rejection order issued in No. ASR/CGA/649/1994/Pt/Dup/28 dated 22.7.2003 passed by the Deputy General Manager,

(Administration) Bharat Sanchar Nigam Limited, O/o. The Chief General Manager, Chennai Telephones 89, Millers Road, Chennai - 10, the 2nd

respondent herein and quash the same as arbitrary, unreasonable, ultravires, improper illegal against the rules and regulations of the respondents

and thereby direct the respondents to appoint the petitioner in any one of the suitable posts under the respondents on compassionate grounds.

The petitioner''s father K.C. Veerabadran employed as Upper Division Clerk in the respondent Telephone Department. He was medically

invalidated from 30th day of June 1993 by the administration under Rule 38 of C.C.S. (Pension) 1972 by the Deputy General Manager,

Department of Telecommunication. The petitioner has submitted an application dated 11.7.1994 to the Chief General Manager, Madras

Telephones, Chennai seeking appointment on compassionate grounds. He has also sent an another representation dated 25.10.1994, to the Chief

General Manager for the same relief. The petitioner has passed S.S.L.C. Examination and he was 30 years old at the time of filing the said

application. On 19.5.1994, the petitioner has received a communication from the Welfare Inspector of Madras, Telephones, Chennai informing

him to appear for personal hearing on any working days between 10.00 a.m. and 12 noon and the petitioner has also appeared accordingly. But

the petitioner has not received any order of appointment or communication for a long period. Thereafter, the respondents have passed an order

dated 6.7.2001 rejecting the request of the petitioner. The said order was challenged by the petitioner in W.P. No. 21093 of 2001 and this Court

by an order dated 30.1.2003 set aside the order passed by the respondent on 6.7.2001 and the matter was remitted back to the first respondent

herein to pass fresh orders on the basis of the scheme. Accordingly, the second respondent herein has passed the impugned order dated

22.7.2003 stating that they have considered the case of the petitioner in terms of the order passed in the above writ petition and the petitioner was

found ineligible, hence rejected the request of the petitioner.

Learned Counsel for the petitioner submitted that this Court by an order dated 30.1.2003 directed the first respondent to consider the case of

the petitioner afresh, but the respondents taking into consideration of the enquiry said to have been conducted in the year 1994 rejected the case of

the petitioner, hence the impugned order is untenable in law. He also submits that the respondents have not produced any evidence to say that the

petitioner is employed as electrician and receiving a monthly salary of Rs. 1,000/-; that though there is a own house in the name of his father, the

same was constructed by availing a loan from the respondent Department; that the retirement benefits of his father is also not at all sufficient to

maintain their family, hence, holding the petitioner ineligible is unsustainable in law and prayed for setting aside the impugned order.

Mr. S. Udayakumar, learned Senior Central Government Standing Counsel appearing for the respondents submitted that the respondents have

considered the case of the petitioner as per the scheme dated 9.10.1998. 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; that the said scheme also fixed the eligibility only if the family is indigent and deserves immediate assistance for relief from

financial destitution.

Learned Counsel for the respondents further submitted that Clause 10(b) of the said scheme provides ""In cases where any member of the family

of the deceased or medically retired Government servant is already in employment and is not supporting the other members of the family of the

Government servant, extreme caution has to be observed in ascertaining the economic distress of the members of the family of the Government

servant so that the facility of appointment on compassionate ground is not circumvented and misused by putting forward the ground that the

member of the family already employed is not supporting the family"". Clause 11 of the said scheme contemplates procedure for ascertaining

necessary information and processing the cases of compassionate appointment. Based on the said procedure a discreet enquiry was conducted by

SDE Welfare, who has also filed a report dated 27.9.1994. The said report was also placed before the Committee consisting of three persons,

which considered and passed an order, which reads as follows:

This case is considered in accordance with the order of Hon''ble High Court of Madras dated 30.01.2003 in WP. No. 21093 of 2001 and WMP

No. 31188 of 2001. It is being considered for relaxation of earning members in the family in accordance with Para 8 & 10 of DoPT OM No.

14014/6/94-Estt(D) dated 9.10.1998. As per the application submitted by the applicant and inspection report of SDE Welfare, the 2 sons,

younger to the applicant are doing electrician work and living separately in Pondicherry right from their earlier age. The applicant, himself is

employed as electrician. He is married, having 2 sons and is 38 years of age. The family of 5 members is living in their own house in which the side

portion is rented out. No reasons are given for applying late. The ex-official, as TOA(G), got his retirement on medical invalidation on 30.06.1993

at the age of 54 years. His family consists of self and 3 sons. Keeping in view all above and the judgment of Hon''ble High Court at Chandigarh

dated 12.9.2002 in CWP No. 17921 of 2002 in case of Jitender Singh v. BSNL, the committee did not agree to give the relaxation and rejected

the request.

Based on the said order, the impugned order is passed. It is further submitted by Mr. S. Udayakumar, learned Senior Central Government

Standing Counsel that the impugned order though not explained the details required, the fact remains that the same was passed based on valid

records and prayed for dismissal of this writ petition.

This Court has carefully considered the arguments of the learned Counsel on either side and also perused the records placed. The petitioner''s

request of compassionate appointment was originally rejected by the respondents by an order dated 6.7.2001, which reads as follows:

I am directed to refer to your letter on the subject cited above and to say that the case of appointment of Sh.V. Sathyanarayana Moorthy was not

recommended in 1993. The case was reexamined by Screening Committee of Chennai Telephones but not recommended, but rejected due to

1) The petitioner is still alive and has made his appeal after a lapse of 7 years;

2) All the three sons and a daughter of the invalid pensioner are already married and are living separately except the applicant who is living with the

ex-official.

3) The applicant is working as electrician.

4) The ex-official is receiving Rs. 2,999/- p.m. as family pension besides rental income of Rs. 500/- p.m.

5) owns a house.

Against the above said order, the petitioner has filed a writ petition in W.P. No. 21093 of 2001 and this Court disposed of the said writ petition

by an order dated 30.1.2003 directing the first respondent herein to pass fresh orders on the basis of the scheme. Accordingly, the first respondent

has passed an order dated 22.7.2003, which is impugned in this writ petition. Of course, the said order is not a speaking order, but the other

records placed by the respondents for consideration, namely, the inspection report of SDE Welfare dated 27.9.1994 and Minutes of the VI

Meeting of High Power Committee of BSNL dated 31.5.2003, the communication of the decision of the High Power Committee by the ADG

(Pers.IV), BSNL, New Delhi dated 09.07.2003, clearly show that the case of the petitioner was considered in terms of the scheme dated

9.10.1998. It is not disputed by the petitioner that his father is receiving pension of Rs. 2,999/- p.m. It is also not in dispute that one portion of his

father''s house was let in for rent and getting monthly rental income. But it is stated that now the petitioner is living in the said portion for which no

evidence is produced. The above said two grounds mentioned by the respondents are sufficient to show that the petitioner''s family is not living in

penury. The discreet enquiry conducted by the authorities disclosed that the petitioner is employed as electrician and getting a monthly salary of Rs.

1,000/-. Even the same is not excluded for consideration, the fact remains that the petitioner''s father is receiving retirement benefits, living in his

own house and also getting rental income from it.

In this context it is necessary to refer the decisions of the Supreme Court reported in Union of India (UOI) Vs. Joginder Sharma, , wherein the

Supreme Court held as follows:

Heard the learned Counsel for the appellant and the learned Counsel for the respondent. The compassionate appointment is intended to enable

the family of the deceased employee to tide over the sudden crisis resulting due to death of the sole breadwinner, who died leaving the family in

penury and without sufficient means of livelihood. If under the Scheme in force any such claim for compassionate appointment can be

countenanced only as against a specified number of vacancies arising, in this case 5 per cent, which ceiling it is claimed came to be imposed in view

of certain observations emanating from this Court in an earlier decision, the Tribunal or the High Court cannot compel the department concerned to

relax the ceiling and appoint a person. Since this method of appointment is in deviation of the normal recruitment process under the rules, where

people are waiting in the queue indefinitely, the policy laid down by the Government regarding such appointment should not be departed from by

the courts/tribunals by issuing directions for relaxations, merely on account of sympathetic considerations or hardships of the person concerned.

This Court as early as in the decision reported in LIC of India v. Asha Ramchhandra Ambekar held that the Courts cannot direct appointments on

compassionate grounds dehors the provisions of the Scheme in force governed by rules/regulations/instructions. If in a given case, the department

of the Government concerned declines, as a matter of policy, not to deviate from the mandate of the provisions underlying the Scheme and refuses

to relax the stipulation in respect of ceiling fixed therein, the courts cannot compel the authorities to exercise its jurisdiction in a particular way and

that too by relaxing the essential conditions, when no grievance of violation of substantial rights of parties could be held to have been proved,

otherwise.

In Punjab National Bank and Others Vs. Ashwini Kumar Taneja, , the Supreme Court has held as follows:

On the basis of the criteria as recommended by the Indian Banks'' Association and adopted by the appellant Bank, it could not be said that the

family of the late K.N. Tiwary had been left in ""Penury"" or ""without any means of livelihood"". The particulars of their income have been noted in

their application and it certainly could not be said on the basis thereof that the respondents were living hand to mouth. The Division Bench erred in

diluting this criteria of penury to one of ""not very well-to-do.

The above said judgments of the Supreme Court made it clear that the appointment on compassionate ground can be extended only to the

family, which satisfies the requirement of the Scheme provided and really living in penury. In view of the discussions made above, it is clear that

petitioner has not satisfied the terms of the Scheme to get an appointment on compassionate ground. Hence, this Court finds no reason to interfere

with the order impugned and accordingly the writ petition is dismissed. No costs.