( 2025:HHC:15616 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 8096 of 2025 Decided on: 19th May, 2025 ________________________________________________________ Bharat Sanchar Nigam Limited and others ....Petitioners Versus Yashomita Kumari …Respondent ________________________________________________________ Coram Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice Hon'ble Mr. Justice Ranjan Sharma, Judge Whether approved for reporting? 1 For the Petitioner: Mr. Navlesh Verma, Advocate. G.S. Sandhawalia, Chief Justice (Oral) The present Writ petition has been filed by the Nigam, which is aggrieved by the order of Central Administrative Tribunal Chandigarh Bench with Circuit Bench, at Shimla dated 15.03.2024, whereby the Original Application was allowed and directions were issued to consider the case of the respondent-applicant for compassionate appointment with net points 55 and offer compassionate appointment. It was further held in the said order that if there was no vacancy available at that point of time, then one post shall be offered to the applicant in the next vacancy under 5% quota. Resultantly, the Tribunal set aside the communication dated 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 03.05.2016, whereby, the applicant was informed by the Divisional Engineer that the High Power Committee as such had rejected her case. 2. Counsel for the Nigam has vehemently argued that the Tribunal as such is not justified in setting aside the recommendations of the High Power Committee, whereby the case of the applicant had been rejected. 3. The Tribunal found that the case as such of the applicant had been wrongly considered in as much as deduction of 5 points had been made on account of the fact that the source of income of family from cultivated land/crop/ any family member already in service, was indicated at Rs.2700/- annually. 4. Resultantly, while examining the instructions whereby the weightage point system for indigent condition was to be given, it was found that the negative mark is only to be calculated, if the spouse is an earning member and the income was up to Rs.4000/- per month. 5. As per communication dated 23.11.2015, it would further show that the applicant spouse was only earning Rs.2700/- annually and therefore there was wrong deduction of 5 points and if the benefit of those points were given, she would come into the zone 3 of consideration as 55 was the cut off points as per the policy as such as the person who would secure net point below 55 points was to be treated as non-indigent person. It was in such circumstances, directions had been issued for the consideration of the case of the applicant-respondent herein. 6. We have perused the communication dated 23.11.2015, appended with the Writ petition, which would go on to show that as per check list with reference to weightage point system, the annual income was Rs.2700/- and the monthly income was Rs.225/-, but apparently it was considered as Rs.2700/- per month to consider the spouse as an earning member and thus minus marks were given to the tune of 5, which pushed the applicant as such out of the zone of consideration. The Tribunal thus has scanned the record minutely to give the benefit as such to the applicant, so that she would be liable to be considered for compassionate appointment. 7. It is not disputed that the husband of the applicant died in harness on 02.12.2012 after rendering 13 years’ of service and he has left behind the applicant-wife, two children and a mother and in such circumstances, she had applied for consideration for compassionate appointment in the month of July-August, 2014, which had been duly processed and as noticed, rejected by the 4 communication dated 03.05.2016, which is a non-speaking as such. 8. The applicant thereafter made another representation dated 31.10.2018, whereby she was further informed that her case was already rejected and thereafter she was forced to approach the Tribunal alongwith an application seeking condonation of delay of 85 days’ in filing the Original Application, which application as such was allowed on 30.04.2021 and delay was condoned. The said order of condoning the delay is not a subject matter of challenge in the present Writ petition, though it might have as such got merged in the final order, which is under challenge. But apparently, the present petitioner-Nigam was never agitated against the condonation of delay, and only on account of the fact that Original Application had been allowed, the issue of delay has also been raked up. We are of the considered opinion that at this belated stage, since that order is neither on record nor in the prayer clause, which is being challenged, it is not open for the Nigam as such now to agitate against the condonation of delay, which was condoned in the facts and circumstances at that point of time by the Tribunal. 9. The arguments raised by the counsel as such that since the family of the deceased was receiving monthly pension of Rs.4563/- on that account, minus marks have been given, is not 5 tenable. If one is to peruse the document dated 23.11.2015 whereby against the said heading points given on account of receiving the family pension is zero the negative 5 marks have been given only on account of alleged agriculture income as such which was considered at Rs.2700/- which would be clear from the letter dated 12.04.2016. The same was addressed to the General Manger Telecom District by the Assistant General Manager, HR/Administration, wherein it was indicated that Rs.2700/- from the agriculture has not been mentioned in the letter that income from agriculture is not to be considered and therefore the justification of the decision of the High Power Committee was done at the subsequent level inter-se the Department. 10. The Tribunal, in such circumstances, has minutely examined the policy as such, which was applicable and came to the valid conclusion as such that the negative marks which had been assigned were done wrongly and this fact has further been substantiated by the additional affidavit which was filed before the Tribunal itself in compliance to order dated 29.03.2022 now placed on record as Annexure P-4. It is mentioned therein that the negative points were given if the income of the spouse is up to Rs.4000/- per month from property and from other sources. 11. The alternate arguments that retiral dues as such to the 6 tune of about Rs.14 lacs had been received by the family as such is also of no use to the counsel for the Nigam, as it is settled principle and held by the Apex Court that the pay out at the time of the death of the deceased is not to be considered while calculating the indigency as such. 12. Reference can be made to the judgment of Apex Court in Balbir Kaur and another vs. Steel Authority of India Ltd. and others, reported in (2000) 6 Supreme Court Cases 493, wherein employer was requiring that, for consideration for appointments on compassionate basis, the applicant should deposit the retiral dues. Resultantly, it was held that sudden jerk in the family on account of losing a breadearner had to be paid compensation by lump-sum amount and the monetary benefit as such would not be replaced by the bread earner, but would undoubtedly bring some solace to the situation. The provision of gratuity was also considered since the deposit of provident fund was being required and it was held that on introduction of Family Pension Scheme, where the employee was compelled to deposit the gratuity amount, would run contrary to the beneficial piece of legislation, which provides that the gratuity is payable on the death of the employee. Resultantly, the Appeals were allowed and directions were issued to consider the case of petitioner for compassionate 7 appointments, keeping in view the fact that endeavor of the law Court would be to administer justice and to decry a compassionate employment opportunity, would neither be fair nor reasonable. 13. The said view was thereafter followed in Canara Bank and another vs. M. Mahesh Kumar reported in (2015) 7 SCC 412 noticing the contention that the respondent family was getting family pension and also obtained the terminal benefits, is of no consequence. 14. Resultantly, the appeal of the Bank was dismissed by upholding the view of the High Court that the claim as such of the appellant for appointment on compassionate basis cannot be denied on account of grant of family pension or payment of terminal benefits. 15. In such circumstances, the order of the Tribunal is justified well reasoned and we do not see any ground as such to interfere in the said order. Therefore the present petition is dismissed in limine. Pending applications, if any, also stand dismissed. ( G.S. Sandhawalia ) Chief Justice 19th May, 2025 ( Ranjan Sharma ) (priti) Judge