Central Administrative Tribunal - Lucknow
Deepak Narula vs Union Of India on 4 November, 2022
CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
OA No. 332/474/2018
Order Reserved on: 08/07/2022
Order Pronounced on:04/11/2022
CORAM
HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A)
Deepak Narula, son of Late Prithvi Raj Narula, aged about
46 years Resident of 9/47, Krishna Nagar, Kanpur.
....Applicant
For Applicant: Shri Vaibhav Krishna
Versus
1. Union of India, through its Secretary, Ministry of Defence
South Block, New Delhi.
2. Garrison Engineer (1) R&D Military Engineer Services
DMSRDE Complex GT Road, Kanpur-208013.
3. Headquarters, Central Command, Through its Chief
Engineer, Lucknow Zone-900450.
4. Military Engineers Services, Headquarters, Through its,
Commander Works Engineers, Chakeri, Kanpur.
....Respondents
For Respondents: Smt. Prayagmati Gupta
ORDER
Per HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A) Page 1 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors.
The present OA has been preferred with regards to grant of compassionate appointment to the applicant in place of his demised father Late Shri Prithvi Raj Narula of the Military Engineering Services (MES).
2. Per applicant, brief facts are that the applicant is seeking appointment to the post of Lower Division Clerk (LDC) on compassionate grounds following the demise of his father late ShriPrithvi Raj Narula while working as AGED(I) R&D Kanpur on 20.11.1999. That, the applicant had applied for compassionate appointment through a representation dated 03.01.2000 soon after the demise, being the only son and there being no other claimantin so far as the mother or other siblings concerned who had given their consent. That on his representation of year 2000, the Board of Officers (BOO) vide order dated 7th February 2000 recommended the case as the applicant had scored 80% marks.Therefore, it is averred that the applicant has a case of merit including as per the guidelines notified by the Government of India from time to time and in particular the O.M. dated 18/11/2014 of Ministry of Defence. However, still the applicant has been running from pillar to post but the appointment has not been granted yet. Hence,the O.A.
3. Per contra, the respondents have repelled the plea of the applicant on the grounds that - (i) the applicant's case was considered in 2007 but had to be rejected as there were more Page 2 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. meritorious candidates within the limited quota of 5% available for compassionate appointees, (ii) that this rejection was communicated to the respondents by the speaking order dated 07.04.2008 ['April 2008' in short hereinafter], Annexure-CR-1, (iii) the applicant has tried to conceal this letter of April 2008and by implication has approached the Tribunal with unclean hands, (iv) the applicant's assertion of the endorsement of the Board of Officers [BOO] of 07/02/2000 ['February 2000' in short hereinafter] is misleading inasmuch that the same is a mere recommendation based on 'suitability assessment'by lower level officers and not the decision of the competent BOO of higher level officers who assessed the applicant along with others in September 2007 as specified in the letter of April 2008.
3.1 The respondents have reliedon the judgment of the Hon'ble Apex Court in the case of Umesh Kumar Nagpal vs. State of Haryana &Ors., decided on May 4, 1994 - (JT 1994(3) SC 525 as also other citations and it is hence submitted that in totality per facts, including the guidelines, the applicant has no case and so the O.A is liable to be dismissed.
4. Heard the learned counsels for the parties at length and perused all the pleadings filed carefully.
Page 3 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors.
5. The key issue is with regards to the consideration of the case of the applicant per the rival contention of facts, processes, guidelines and law.
6. In order to adjudicate the applicant's plea, it is important to first of all examine the order dated 07.4.2008. The relevant portions are extracted bellow:
"6. The Board of Officers held during Sep 2007 at this Headquarters after taking into account each aspect referred to above, has considered your case alongwith other Je to more candidates. However, due to more deserving cases and few vacancies available, your case was not recommended by the BOO for appointment on compassionate ground.
Therefore, after due circumspection and consideration in the light guidelines of DOP&T and various judgments of the Hon'ble Supreme Court and that the appointment on compassionate grounds is not a matter of right and after a -balanced and objective- assessment of the totality of the circumstances of the case the decision of Board of Officers at this Headquarters, the competent authority has considered and rejected the employment assistance to Shri DeepaK Narula, S/O Late Prithivi Raj Narula on compassionate grounds Hence your case is finally closed and disposed off."
Evidently the case of the applicant could not be considered due to lack of competitive merit as compared to cases of other candidates. 7.1 In light of the above letter to the applicant by the respondents, several points flare up: Firstly that the applicant has simply not challenged the April 2008 letter in his relief paragraph nor stated its existence with regards to the grounds of challenge andsecondly, that the applicant has simply pleaded for directions of this Tribunal to decide his representation of 19/4/2018 and the respondents' reply thereupon dated 27/4/2018. The grounds nowhere breathe about the April 2008 letter rejecting the case of the applicant. Page 4 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. 7.1.1 On this score it is clear that it is neither logically acceptable nor legally justifiable that the applicant or his mother who were so keen starting March 2000, when the application was first made for compassionate appointment, and are so keen currently as we see 22 years later, when the O.A is being hotly contested, kept silent after the representation of 01/08/2007 (Annexure No.7 of O.A) made by the mother of the applicant and after even having received the stated 'Harness Certificate' document dated 08/08/2007 filed as Annexure No.10 and did not get curious about the result of the process of selection after August 2007 certificate right uptill 2016 - viz almost a decade later, when the applicant's mother made the innocuous looking letter of 28/12/2016 (Annexure-No.11) from office of Garrison Engineer in reference to the letter of the applicant dated 30/11/2016 and 19/12/2016. The letter of 28/12/2016 is extracted below for appreciating the deviousness of mind of the applicant in trying to bestow his matter a new look after its rejection in 2008.
Annexure No.11 Shri Deepak Narula S/o Late Prithvi Raj Narual H. No. 9/47, Krishna Nagar, Kanpur-07 Request : Employment after father's Demise (Late Prithvi Raj Narula)
1. Reference your letter Nos. Nil dt 30 Nov 2016 and Nil dt 19 Dec 2016.
2. It is intimated that letters regarding re-opening of old cased for compassionate appointment which are mentioned in your letter Page 5 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors.
under ref not found enclosed. You are requested to submit the same so as you case can be re-opened.
(Amaresh Mishra) AE(E/M) Offg GE (I) R&D) Kanpur It is inexplicable that all communications to the applicant were received till 08/08/2007 and the crucial letter of 07/04/2008 was not received and suddenly then the letter of 28/12/2016 was received. Who can believe this?.What is also important is that the respondents of 28/12/2016 is in reply to the letter dated 30/11/2016 and 19/12/2016 of the applicant as may be seen in the extracts above. Thus the assertion of the applicant that he had no knowledge of the April 2008 letter of the respondents intimating the rejection of his case for compassionate appointment is a ruse not believable on the mere statement of the applicant given the preponderance of evidence prior and around it. What appears to have happened is that the applicant after receiving the rejection letter did not take any further action having accepted it as a finality and did not even approach this Tribunal or any court fora, until eight years later when for whatever reasons best known to the applicant the representation was made vide November 2016 followed by another desperate letter of December 2016 re- igniting the issue of compassionate appointment. The question arises as to what can be done first of all per the law laid down by the Hon Apex court in matter of sleeping petitioners and the concept of limitation. In the matter of Shiv Dass v/s. UOI &OrsAIR Page 6 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. 2007 SC 1330, it has been held by the Hon'ble Apex Court that if a petition is filed beyond a reasonable period say three years normally the court would reject the same. In Chairman, UP Jal Nigam Vs. Jaswant Singh, 2007(1) SCC (L&S) 500, Hon'ble Supreme Court held that those who sit on the fence and wake up to take up the matter are not entitled to any relief. In Hon'ble Apex Court in Biswaraj& another Vs. Spl. L.A., AIR 2014 SC 746, has laid down that limitation has to be applied with all its rigors even if harshly affect a party. Here the delay by the applicant in approaching the Tribunal by some 14 years starting 2007/2008 cannot be wished away on the pretext of no knowledge of the April 2008 order. Hence, this Tribunal is unable to consider despite anxious consideration any way out to help the applicant. So the applicant's plea of coming late to the respondents and to the Tribunal has to be held against him. More so, in a case of compassionate appointment whose very purpose is to give employment as succour to the financially handicapped family.The relief therefore, of seeking direction for disposal of the representation by the respondents is a cleverly disguised ploy to side step the rejection and try luck at the wheel once again so what if a decade and a half has gone by since the rejection of April 2008. Hence there is no question of giving any short cut direction to the respondents for deciding the representation of 2018 and we will go full dive into the merits of the case rejecting the plea for a mere directions to decide the representation in light of discussions above. The point of delay will Page 7 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. be dealt with more in discussions on various Hon Apex court citations in the later part of this judgment. Suffice it to say that the applicant seems to have missed the bus after 2008 on his own account which he is vainly trying to conceal in a poor lame and misleading attempt to reignite the matter of compassionate appointment which point therefore, cannot be held in his favour qua the plea of directions by this Tribunal to merely direct the respondents to decide the representation of 19/4/2018.
8. Now once we start to examine the merits of the applicant's claim for compassionate appointment two key points come up: (i) justifiability of the applicant's claim that he scored high 80% marks despite which his plea was rejected and (ii) possibility of the case for still further consideration per the guidelines. 8.1 As regards the claim per merits of score, it is clear that the score of 80% was obtained in the 'suitability assessment' conducted by the BOO of the AGE(I) level at the Unit as asserted by the respondents [para-14 of CA]. The applicant in RA in para- 11 has made a bald assertion that even if the score was 80% the applicant is worthy in merit as candidates with lesser marks have been given appointment. This argument is misplaced because - firstly the 80% is with regards to 'suitability assessment' score and is a half-way score inasmuch that, secondly, it was followed by the final consideration by the BOO which assessed the applicant's case in the September 2007 meeting per the order of Page 8 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. April 2008, wherein, the assessment of the candidate was found to be of lesser merit than the other competing candidates for which reason the applicant could not be selected. Thus, the score of 80% is a half-way score and not the assessment arrived at by the higher level BOO per the September 2007 meeting. What this Tribunal cannot lose sight of is the fact that the 80% marks obtained by the applicant vide Annexure No.6 of the O.A in the suitability assessment by the Board of Assessment [BOO] vide report dated 07/02/2000 was convened at the Unit level for suitability to the post applied, which is at AGE (I) level and which only determines suitability of the candidate. However, as the respondents have averred, the appointment is made only at the Command level which is the HQ CE CC Lucknow for consideration of merit of all cases in the Command jurisdiction (para-14 of the CA) and as more qualified candidates were available hence the case of the applicant could not be considered. Moreso that the actual assessment at the Command level was done by a separate BOO at the Command level convened in September 2007 (para-20 of the CA). The assertion of the respondents in para-20 of the CA are denied without any justifiable rationale by the applicant vide his RA in the related RA para-17 inasmuch that the applicant continues to insist that he was assessed with 80% marks by the BOO and has not specifically been able to deny the September 2007 BOO as against the February 2000 level which was more than seven Page 9 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. years ago. Thus the September 2007 BOO asserted by the respondents has gone unrebutted and instead only the February 2000 BOO of a lower recommendatory level is insisted upon and taken support of by the applicant. This assertion of the applicant solely on February 2000 assessment even if of 80% marks fails because these are not the 80% marks obtained in the actual assessment by the Command level BOO convened BOO. The applicant has denied the existence of knowledge of the most crucial letter of 07 April 2008 [Annexure CR-1] which is specifically addressed to him and asserts that he had no knowledge against which the respondents assert that the applicant has tried to conceal the letter and mislead the Tribunal. So the conclusion is that the applicant is placing reliance on a earlier 'suitability assessment' level whereas not the assessment of the higher level BOO of September 2007. Actually the tragedy is that since the applicant has not challenged the September 2007 assessment in a vain attempt to side step its knowledge for getting a short cut for reconsideration through the representation route as prayed in the relief, hence the applicant is now hand and mouth bound to take up any point relating to the September 2007 assessment but, since in this judgment, we have to deal with the merits as argued and asserted to by the respondents also and not go by with what the applicant has just said,so, we cannot, let the case get away by an effort to seek an innocuous order of deciding a seemingly harmless representation - a Page 10 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. misplaced clever ploy as discussed earlier. Therefore, even if the applicant sticks to the February 2000 score, the same cannot be taken as the final assessment for the selection in light of the existence of the September 2007 assessment vide the April 2008 order. Hence, the Defence of February 2000 assessment of the applicant cannot be considered to save his rejection vide April 2008 letter of the respondents. Therefore, this point of the applicant scoring high marks and still being left out is settled against the applicant.
8.2 As regards the allegation that other candidates who scored less marks got selected - this cannot be considered in the specific case of the applicant herein, in this O.A, for the simple reason that the alleged candidates are not party and should any decision of this Tribunal go against them qua the allegation of the applicant - because this Tribunal cannot direct consideration of selection beyond the limit of 5% quota -and someone or more than one candidate selected allegedly erroneously per the applicant - then an order would have to be passed against such candidates - in which situation- this Tribunal would be committing injustice in holding anything against them without giving them an opportunity. Thus, since the applicant has not made them parties, hence the allegations are just that and nothing more and so not justifiable in the eyes of law.More so, the assertion of lesser marks per the letter dated 13/4/2017 [Annexure No.12] is no help either because the marks stated Page 11 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. therein are not the marks obtained in suitability assessment but in the actual assessment by the concerned BOO at the Command level.
8.3 As regards the vacancy availability certificate of 31/7/2007 filed as Annexure No.7 of O.A, the same also does not help inasmuch that the case of the applicant was indeed considered by the competent BOO vide the letter of April 2008 [Annexure CR-1], and so now in 2022 to hold any rationale favouring the applicant on the ground of some vacancy certificate of 2007 is highly unjustifiable. This is so on two grounds - (i) that the BOO of September 2007 assessed the merit and the available vacancies would have been logically considered and the same is stated per the letter itself as is clear from the extracts reproduced earlier in the judgment that the cases were considered per the available vacancies and (ii) logically therefore, the said vacancy per the letter dated 31/7/2007 would have got considered and duly filled per merit in September 2007 BOO and so, now, there is no case of considering the same by this Tribunal any further as the vacancy not only would be exhausted and settled in favour of a candidate of higher merit than the applicant whose - the concerned candidate's case cannot now be opened up - as he/she is not a party to this lis and the case of the applicant would also have been considered against the said vacancy but as the applicant was lesser in merit therefore, despite the existence of the vacancy he could not be given the appointment. Therefore, the Page 12 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. issue of giving any consideration to the applicant qua the vacancy of 2007 now cannot be held in his favour.
8.4 Therefore, thewhole point of the applicant's case being worthy of consideration per merits, vacancy and marks does a crash landing on the runway of justice.
9. As regards the possibility of further consideration per the guidelines it would be worthwhile to examine the guidelines and see what can be done qua the claim. Relevant portions are extracted below:
M/o Defence Circular dated 18/11/2014 (Annexure-CR-2) No. 19(3)/D(Lab) Government of India, Ministry of Defence New Delhi, the 18.11.2014 OFFICE MEMORANDUM Subject: Instructions on Compassionate appointment - regarding.
The undersigned is directed to invite attention to this Ministry's OM No. 19(9)/2012/D(Lab) dated 8.8.2012 vide which DoP&T OM No. 14014/3/2011-Estt(D) dated 26.7.2012.regarding withdrawal of three years time limit for granting compassionate appointment was circulated to all concerned for compliance. Accordingly any application for compassionate appointment is to be considered without any time limit:
In this regard Para 8 of DoP&T OM No. 14014/02/2012-Estt(D) dated 16.1.2013 and Sl.No. 38-43 of FAQ issued vide DoP&T OM No. 14014/02/2012-Estt(D) dated 30.5.2013 also refers,
2. The above point was raised by the Staff Side in the 90th Departmental Council Meeting (JCM) held on 29.8.2014. The representative of AIDEF pointed out that the lower formations are not following the extant DoP&T instructions and rejecting cases on the ground that the time limit of three years is over."Page 13 of 32
CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors.
3. All addressees may ensure the compliance of above instructions of DoP&T as mentioned above in all the lower formations under their administrative control.
(BiswajitGuha) Under Secretary (Lab) M/o Defence Circular dated 30/4/2015 [Annexure CR-3] New Delhi the 30 .4 2015 OFFICE MEMORANDUM Subject: Review of compassionate appointment cases regarding. The undersigned is directed to invite attention to lius Ministry'- OM NO _19(3)/2013/B(Lab) dated 18.11.2014 vide which al administrative authorities were requested to strictly comply the instructions contained in Para & of DoP&T OM No. 14014/02/2012- Estt(D) dated 16.1.2013 regarding withdrawal of three years time limit and SL.No. 38-43 of FAQ rated vide DoP&F OM No. 14014/02/2012- Estt(D) dated 30.5.2013
2. An issue has been raised by BhartiyaPrateakshaMazdoorSangh (BPMS) informing that the Line Directorates Units of Amy HQrs are not considering the compassionate appointments in true spirit of the guidelines issued by DOP&T and the requests for compassionate appointment are being rejected on the plea that as per policy once three consecutive chances had been considered, the case is considered to be closed and cannot be opened
3. As per the new guidelines on compassionate appointment, any application for compassionate appointment is to be considered without any time limit and decision taken on merit in each case.
4. A Regarding re-opening of old cases which were closed on completion of three years time limit as per the earlier policy of DoP&T at may be noted that the DoP&T vide their OM dated 30.5.2013 have clarified that the closed cases can he reopened provided that the cases were closed due to non-availability of vacancies during the 3 year time period. However these cases may be considered as per the criteria mentioned in SL.No. 32 & 39 of FAQ dated 30.5.2013. Such cases should not be opened merely because the time limit has been waived off. In this regard DoP&T have further clarified that the cases which have been closed for not being found suitable under the criteria for compassionate appointments, need not to be opened irrespective of the waiver of time limit.
5. In view of the above, all the Service Qrs/lower formations are requested 5 to follow the DoP&T's above guidelines in letter and spirit. They may not reject any application for compassionate appointment simply on the ground that it had already been considered thrice unless it was rejected due to lack of merit/not found suitable under the criteria for compassionate appointments. If the compassionate appointment Page 14 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors.
could not be granted due to non-availability of vacancies at that time, any fresh application, received now should be re considered after adjudging his penurious condition on the basis of the family's latest financial/economic condition, number of dependents of the family as on date, latest marital status of dependents etc in the light of the existing guidelines of DoP&T on the subject.
(BiswajitGuha) Under Secretary (Lab) Evidently,per M/o Defence Circular dated 18/11/2014 regarding re-opening of old cases issued post DOPT Circulars dated 16/01/2013 and 30/5/2013 and further M/o Defence Circular dated 30/4/2015, while cases more than 03 years can be re- opened, but most importantly, only if they were closed due to non-availability of vacancies during the three-year time periodeven while they had merit and could not be considered due to lack of vacancies. The point is that such cases would not be reopened which were closed on account of lack of merits. It is the respondents' assertion that the case of the applicant was closed due to lack of merit per the April 2008 order within the vacancies quota permissible and not due to just the lack of vacancies available and so now, even with the support of the DOPT and M/o Defence Circulars, the applicant's cannot be re-opened. Hence, there is no case for re-opening of the applicant's matter even with the support of the guidelines qua the reconsideration after the lifting of the barrier of three years.
10. As regards the plea that the applicant and his mother and other dependents are under financial deprivation is a non-starter inasmuch that all candidates seeking compassionate Page 15 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. appointment take this plea and in fact compassionate appointment provision originates on this rationale much of which law will be discussed shortly qua the catena of judgments of the Hon Apex court. The case of the applicant has been rejected vide the April 2008 order after consideration of all these points as compared to other competing candidates and hence this plea cannot be considered.
11. Now we may seek light from the law laid down by the Hon Apex court and higher courts in connection with cases of compassionate appointment. The respondents have submitted that -
(i) theHon Apex court in the matter of Umesh Kumar Nagpalv/s State of Haryana &Ors, [JT 1994 (3) SC 525 has clearly laid down the law as under:
"2.The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and met-it. No other mode of appointment nor any other consideration is Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government Page 16 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors.
or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the Change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.
3.Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible.
4.It is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even directed compassionate employment either as a matter of course or in posts above Classes III and TV. We are also dismayed to find that the decision of this Court in SushmaGosain v. Union of India' has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above Classes III and IV. In the present case, the High Court has rightly pointed out that the State Government's instructions in question did not justify compassionate employment in Class 11 posts. However, it appears from the judgment that the State Government had made at least one exception and provided compassionate employment in Class II post on the specious ground that the person concerned had technical qualifications such as M.B.B.S., B.E., B.Tech. etc. Such exception, as pointed out above, is illegal, since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the penurious condition of the deceased's family. Neither the qualifications of his dependent nor the post which he held is relevant. It is for this reason that we are unable to understand the following observations of the High Court in the impugned judgment:
"We are of the view that the extraordinary situations require extraordinary remedies and it is open to the Government in real hard cases to deviate from the letter and spirit of the instructions and to provide relief in cases where it is so warranted. To hold as a matter of law that the Government cannot deviate even minutely from the policy of providing appointment only against Class III and Class IV posts, would Page 17 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors.
be to ignore the reality of life these days. It would be ridiculous to expect that a dependant of a deceased Class I Officer, should be offered appointment against a Class III or IV post. While we leave it to the Government to exercise its discretion judiciously in making appointments to Class I or 11 posts on compassionate grounds, yet a word of caution needs to be struck. It is to be noted that such appointments should be ordered in the rarest of rare cases, and in very exceptional circumstances. As a matter of fact, we would recommend that the Government should frame a policy even for such appointments."
5. It is obvious from the above observations that the High Court endorses the policy of the State Government to make compassionate appointment in posts equivalent to the posts held by the deceased employees and above Classes III and IV. It is unnecessary to reiterate that these observations are contrary to law. If the dependant of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity.
6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole (1989)4SCC468:1989SCC(L&S)662:(1989)11ATC878:(1989)4SLR327 br eadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.
7.It is needless to emphasise that the provisions for compassionate employment have necessarily to be made by the rules or by the executive instructions issued by the Government or the public authority concerned. The employment cannot be offered by an individual functionary on an ad hoc basis.
8. For the reasons given above, we dismiss the special leave petitions.."
(ii) that theSupreme Court in its judgement dated April 8, 1993 in the case of Auditor General of India and others vs. G. Ananta Rajeswara Rao |(1994) SCC 192] has held that appointment on grounds of descent clearly violates Article 16(2) of the Constitution, but if the appointment is confined to the son or daughter or widow of the Government servant who died in harness and who needs immediate appointment on grounds of Page 18 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. immediate need of assistance in the event of there being no other caring member in the family to supplement the loss of income from the bread winner to relieve the economic distress of the members of the family, it is unexceptionable.
(iii) The Supreme Court has held in its judgement dated February 28, 1995 in the case of the Life Insurance Corporation of India vs. Miss Aslıg Ramchandra Ambekar and others [JT 1994(2) S.C. 183] that the High Courts and Administrative Tribunals cannot give direction for appointment of a person on compassionate grounds but can merely dueri consideration of the claim for such an appointment.
(iv) The Supreme Court has ruled in the cases of Himachal Road Transport Corporation vs. Dinesh Kumar (JT 1996 (5) S.C. 319) on May 7, 1996 and Hindustan Aeronautics Limited vs. Sint A. Radhika Thirumalai [IT 1996 (9) S.C 197] on October 9, 1996 that appointment on compassionate grounds can be made only if a vacancy is available for that purpose.
(v) The Supreme Court has held in its judgement in the case of State of Haryana and others vs. Rani Devi and others [JT 1996(6) S.C. 646) on July 15, 1996 that if the scheme regarding appointment on compassionate ground is extended to all sorts of casual, ad-hoc employees including those who are working as Apprentices, then such scheme cannot be justified on Constitutional grounds Page 19 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors.
(vi) The Hon'ble Supreme Court in its judgment dated 05.04.2011 in Civil Appeal No. 2206 of 2006 filed by Local Administration Department vs. M Selvanayagam @kumaravclu has observed that "an appointment made many years after the death of the employee or without due consideration of the financial resources available is not permissible.
12. The Hon High Court Allahabad, has in the matter of Civil Misc. Writ Petition No.13102 of 2010, Union of India &Ors. Vs. Smt. Asha Mishra &Anr decided on 07/5/2010held:
"No doubt Shakespeare said in Merchant of Venice:
"The quality of mercy is not strain'd;
It droppeth, as the gentle rain from heaven Upon the place beneath it is twice bless'd;
it blessth him that gives, and him that takes;." [emphasis supplied] .....These words will not apply to all situations. Yielding to instinct will tend to ignore the cold logic of law. It should be remembered "law is the embodiment of all wisdom". Justice according to law is a principle as old as the hills. The Courts are to administer law as they find it, however, inconvenient it may be...........
......11. At this juncture we may usefully refer to Martin Burn Ltd. v. Corporation of Calcutta, AIR 1966 SC 529. At page 535 of the Report the following observations are found:
"A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not."
The Courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however hard the case may be, it should never be done. In the very case itself, there are Regulations and Instructions which we have extracted above. The Court below has not even examined whether a case falls within the scope of these statutory provisions. Clause 2 of sub- clause (iii) of Instructions makes it clear that relaxation could be given only when none of the members of the family is gainfully employed. Clause 4 of the Circular dated 20-1-1987 interdicts such an appointment on Page 20 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. compassionate grounds. The appellant Corporation being a statutory Corporation is bound by the Life Insurance Corporation Act as well as the Statutory Regulations and Instructions. They cannot be put aside and compassionate appointment be ordered.
15. To say, as a Court below has done that the 2nd respondent is at the prime of his life and youth and is aged about 21 years and the dues that are paid by the Life Insurance Corporation to the family are the lawful dues that are earned by the deceased. Therefore, on facts, he would be entitled to appointment on compassionate grounds is not the correct approach.
16. We are totally unable, to support this line of reasoning. For aught one knows, there may be other cases waiting already for appointment on compassionate grounds, they may be even harder than that of the 2nd respondent."
In Umesh Kumar Nagpal (Supra) the Supreme Court held in paras 2 and 6 as follows:-"
The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Class-III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned.
For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."Page 21 of 32
CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. In the last decade most of the departments and the banks framed their respective schemes for consideration of compassionate appointment. The Union Bank of India in Para 4 of its scheme for appointment of dependents of deceased employees on compassionate grounds provides that compassionate appointment will be offered by the bank only in the case where the bank is satisfied that the financial condition of the family is such, that but for profession of employment, the family will not be able to meet the crisis. The bank declined the request on the ground that the respondent's family was not indigent. The terminal benefits and the monthly family pension was sufficient for the family. In Union Bank of India Vs. MT Latheesh, (2006) 7 SCC 350 the Supreme Court considered a case in which Union of India rejected the application for compassionate appointment on the ground that the terminal benefits, monthly family pension received was sufficient for maintaining the family. The writ petition was allowed by the single judge of the High Court and the Division Bench dismissed the appeal. In the Civil Appeal the Supreme Court after referring to the judgments in Umesh Kumar Nagpal (Supra); Gursaran Singh Vs. New Delhi Municipal Committee, (1996) 2 SCC 459; GM (D & PB) Vs. KuntiTiwari, (2000) 6 SCC 493; Punjab National Bank Vs. Ashwani Kumar Taneja, (2004) 7 SCC 265 and BalbeerKaur Vs. State Authority of India, (2000) 6 SCC 493 allowed the appeal on the ground that the bank had considered the application in terms of the statutory schemes framed by the bank. The bank did not find the applicant to be eligible for appointment. The High Court could not have held otherwise. The compassionate appointment being an exception to the general rule, the appointment has to be exercised only in warranting situations and circumstances existing in granting appointment and guiding factor should be financial conditions of the family. In General Manager, Uttaranchal JalSansthan, Vs. Laxmi Devi, (2009) 7 SCC 205, the Supreme Court had an occasion to revisit the law of compassionate appointment, in a matter arising out of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. It was held that if the deceased was not a government servant, the question of applicability of the Rules did not arise. The compassionate appointment has to be given strictly in accordance with the Rules. In Santosh Kumar DubeyVs. State of U.P., (2009) 6 SCC 481 the Supreme Court reported in paras 11 and 12 as follows:-
"11.The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints.
12. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be Page 22 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors.
treated as a bonanza and also as a right to get an appointment in government service."
In State of Chattisgarh&Ors. Vs. Dhirjo Kumar Segar, (2009) 13 SCC 600 the Supreme Court held that appointment on compassionate ground is an exception to the constitutional scheme of equality as adumbrated under Art.14 and 16 of the Constitution of India. Nobody can claim appointment by way of inheritance. It is a concession and not a right. The Supreme Court followed SAIL Vs. Madhu Sudan Das, (2008) 15 SCC 560 and I.G. (Karmik) Prahlad Mani Tripathi, (2007) 6 SCC 162 in which it was held that an employee of a State enjoys a status. The recruitment of employees of the State is governed by the Rules framed under an statute or the proviso appended to Art.309 of the Constitution of India. In the matter of appointment the State is obliged to give effect to the constitutional scheme of equality as adumbrated under Art.14 and 16 of the Constitution of India. All appointment, therefore, must conform to the said constitutional scheme. The Court, however, while laying emphasis carved out an exception in favour of the children or other relatives of the officer, who died or become incapacitated while rendering service in the police department. It was held that public employment is considered to be a wealth. In its premise of constitutional scheme compassionate appointment cannot be given on mere descent. When such an exception has been carved out by the court, the same must be strictly complied with. The appointment on compassionate ground, is given only for meeting the minimum hardship, which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion.
The principles of consideration for compassionate appointment have been firmly settled and have been reiterated from time to time. Compassionate appointment is not a vested right or an alternate mode of employment. It has to be considered and granted under the relevant rules. The object of compassionate appointment is to tide over an immediate financial crisis. It is not a heritable right to be considered after an unreasonable period, for the vacancies cannot be held up for long and that appointment should not ordinarily await the attainment of majority. Where the family has survived for long, its circumstances must be seen before the competent authority may consider such appointment. It is not to be ordinarily granted, where a person died close to his retirement. The Court, however, has emphasised time to time and more authoritatively in National Institute of Technology Vs. Neeraj Kumar Singh, (2007) 2 SCC 481 that such appointment can be granted only under a scheme. It should not be considered after a long lapse of time.
In this background, keeping the object and purpose of such appointment, the Tribunal rightly found that where family has been held to be living in penurious condition, and that appointment could not be offerred for want of vacancies in 5% of the direct recruitment, the restriction of 3 years for consideration for such appointment is wholly unreasonable, irrational and arbitrary. Unless it is found that any member of the family has acquired Page 23 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. employment or any asset, which may mitigate the continuing hardships, the closure of the case for consideration of compassionate appointment to a family of which the bread earner has died, after three years is extremely harsh and unjust. In such case the family in need of compassionate appointment may be displaced by another family, who may be suffering lesser hardships.
The question of delay is related to the making of the application and not the pendency of application. Where a member of the family of the deceased seeking compassionate appointment has applied within a reasonable time and that competent authority/ committee has found the application to fall within the prescribed norms, and living in penury, the delay on account of want of availability of vacancy in 5% quota of direct recruitment cannot be attributed to the applicant. The prescription of 5% quota may serve the principles of reverse discrimination to direct recruits, seeking employment and violation of their rights under Art.14 and 16, if all the vacancies are available for compassionate appointment, but confining the consideration for appointment in 5% quota for only three years has no rationale or any object to achieve for providing such appointment. In Hari Ram (Supra) the principle of rationality was discussed in paras 17 and 18 as follows:-
"Rationality is a term related to the idea of reason. It has dual aspects. One of the aspect associates it with apprehension, intelligence or inference. The other aspect associates the rationality with explanation, understanding and justification. A logical reason is rational, if it is logically valid. Rationality is, however, broader term than logic. It also includes "uncertain but sensible"
argument based on probability, expectation and personal experience. The logic on the other hand deals with provable facts and demonstrably valid relations between them. There are many theories of rationality. German Sociologist Max Weber distinguished between four types of rationality; (a) purposive or instrumental rationality, which includes expectation to the behaviour of other human being or objects in the firmament, (b) valuable/ belief oriented rationality, which means action for one might call reasons intrinsic to the others, some ethical, aesthetic religious or other motive, (c) effectual where the action determined by actors specific effect, feeling or emotions, which are meaningfully oriented and (d) traditional means determined by ingrained habituation. It is very unusual to find anyone of these orientation compassion are norm.
In this case the placement in the waiting list for 5% DR quota has not been shown to be based on the penurious condition of the family of the deceased employee. His first and second review by the Prescribed Committee confirms that the application still needs and falls within the category of the family, which are in financial distress. Inspite of such verification, the prescription of maximum period of three years for compassionate appointment may result into grant of appointment after long delay, but has no object to be achieved except by permitting the family to continue to live under poverty, whereas new cases may be considered on their own merits in the first, second and third year."
In the present case the respondents have neither pleaded nor placed any material to show that during the pendency of the application for three years Page 24 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. within which it was considered, or thereafter the family has pulled out of financial distress, or that it no longer falls within the norms of offering compassionate appointment. The appointment has been denied only on the ground that for three years no vacancy could be found for her in 5% quota and thus her case was closed. The Tribunal in our opinion has rightly found that policy for consideration of application by only three years and the consequential order is wholly unreasonable, irrational and is violative of Art.14 and 16 of the Constitution of India.
The writ petition is dismissed.
Dt.07.05.2010"
13. To add to above, the Hon Apex Court has held in the matter of Himachal Pradesh vs Parkash Chand on 17 January, 2019 Bench: H Gupta, D D Chandrachud - CIVIL APPEAL NO.977 OF 2019 (Arising out of SLP(C) No.28355 of 2016) as under:
"...It is well-settled that compassionate appointment is not a matter of right, but must be governed by the terms on which the State lays down the policy of offering employment assistance to a member of the family of a deceased government employee. [Umesh Kumar Nagpal Vs. State of Haryana2, General Manager (D&PB) Vs. Kunti Tiwary,Punjab National Bank Vs. Ashwani Kumar Teneja, State Bank of India Vs. Somvir Singh, MumtazYunusMulani Vs. State of Maharashtra,Union of India Vs. ShashankGoswami, State Bank of India Vs. Surya NarainTripathi and Canara Bank Vs. M. Mahesh Kumar] For the above reasons, we are of the view that the judgment of the High Court is unsustainable. ................But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar NagpalVs. State of Haryana4. The principles which have been laid down in Umesh Kumar Nagpal (supra) have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract:
"2. ...As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies.
One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian Page 25 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors.
consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual 4 (1994) 4 SCC 138 categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned." Specifically in the context of considering the financial circumstances of the family of the deceased employee, several judgments of this Court have elaborated on the principles to be followed.
The decision in General Manager (D&PB) Vs. Kunti Tiwary5 involved an interpretation of an office memorandum dated 7 August 1996 circulated to all banks in the light of the decision in Umesh Kumar Nagpal (supra). The Indian Banks Association adopted the directions of this Court in the Scheme which was proposed for the appointment of heirs of deceased employees. The Scheme contemplated that in order to determine the financial condition of the family, the following amounts would have 5 (2004) 7 SCC 271 to be taken into account:
"7...(a) Family pension.
(b) Gratuity amount received.
(c) Employee's/employer's contribution to provident fund.
(d) Any compensation paid by the Bank or its Welfare Fund.
(e) Proceeds of LIC policy and other investments of the deceased employee.
(f) Income of family from other sources.Page 26 of 32
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(g) Employment of other family members.
(h) Size of the family and liabilities, if any, etc." Eventually, this recommendation was accepted in the Scheme. In the light of these recommendations and the Scheme, this Court observed that where the family of a deceased employee was not left without means of livelihood, the claim for compassionate appointment could not be sustained. It may be noted that in that case it was on a review of the overall financial position of the family, including amounts received towards terminal benefits that the decision was taken. The decision of this Court in Punjab National Bank Vs. Ashwani Kumar Taneja6 followed the same principle. While reiterating the view which was taken in KuntiTiwary (supra), this Court held that the Scheme specified the amounts which were required to be taken into consideration.
The decision in State Bank of India Vs. Somvir Singh7 has noticed the scheme for appointment of dependants of 6 (2004) 7 SCC 265 7 (2007) 4 SCC 778 deceased employees on compassionate grounds framed by the State Bank of India. The Court expressly held that the authorities were not in error in taking account of the terminal benefits, investments and the monthly family income including the family pension paid by the Bank. The view of this Court finds expression in the following extract:
"12. The competent authority while considering the application had taken into consideration each one of those factors and accordingly found that the dependants of the employee who died in harness are not in penury and without any means of livelihood. The authority did not commit any error in taking the terminal benefits and the investments and the monthly family income including the family pension paid by the Bank into consideration for the purposes of deciding as to whether the family of late Zile Singh had been left in penury or without any means of livelihood. The scheme framed by the appellant Bank in fact mandates the authority to take those factors into consideration. The authority also did not commit any error in taking into consideration the income of the family from other sources viz. the agricultural land." (emphasis supplied) In the view of this Court, the only issue to be considered was whether the claim for compassionate appointment had been considered in accordance with the Scheme. The income of the family from all sources was required to be taken into consideration according to the Scheme. This having been ignored by the High Court, the appeal filed by the Bank was allowed.
The judgment of a Bench of two-Judges in MumtazYunusMulaniVs. State of Maharashtra8 has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the Scheme. The decision in GovindPrakashVerma (supra) has been duly considered, but the Court observed that it did not appear that the Page 27 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors.
earlier binding precedents of this Court have been taken note of in that case.
In Union of India Vs. Shashank Goswami, this Court considered a circular issued by the Office of the Comptroller and Auditor General of India in terms of which the total income of the family from all sources, including terminal benefits received, was required to be taken into account. Income limits were specified in the circular for Group 'B', Group 'C' and Group 'D' posts. Taking note of the fact that a family pension has been authorized to the widow of the deceased employee, this Court held that the case of the dependant did not fall within the income limits meant for Group 'C' posts.
The same principle has been reiterated in another decision of a Bench of two-Judges of this Court in State Bank of India Vs. Surya Narain Tripathi10. 8 (2008) 11 SCC 384 9 (2012) 11 SCC 307 10 (2014) 15 SCC 739 While adverting to a submission of learned counsel based on the decision in Govind Prakash Verma (supra), this Court noted thus:
"8. He relied upon the judgment of this Court in GovindPrakashVerma v. LIC[GovindPrakashVerma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] where a view has been taken that the compassionate appointment cannot be refused on the ground that another member of the family had received appropriate employment and the service benefits were adequate. We may humbly state that this view runs counter to the view which was taken earlier in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] which was not cited before the Court in GovindPrakash [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] . The subsequent two judgments which were referred above also take the same view as in Umesh Kumar Nagpal[Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] . Mr Vikas Singh has drawn our attention to the judgment in SBIv. Somvir Singh [SBI v. Somvir Singh, (2007) 4 SCC 778 : (2007) 2 SCC (L&S) 92] where the 1998 Scheme has been considered.
9. In all the matters of compassionate appointment it must be noticed that it is basically a way out for the family which is financially in difficulties on account of the death of the bread earner. It is not an avenue for a regular employment as such. This is in fact an exception to the provisions under Article 16 of the Constitution. That being so, if an employer points out that the financial arrangement made for the family subsequent to the death of the employee is adequate, the members of the family cannot insist that one of them ought to be provided a comparable appointment. This being the principle which has been adopted all throughout, it is difficult for us to accept the submission made on behalf of the respondent." Now, it is in this background that it would be necessary to advert to the decision in Canara Bank (supra). A Scheme for compassionate appointment of 8 May 1993 was prevalent in Canara Bank when the employee died on duty in October 1998. Faced with the rejection of an application for Page 28 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors.
compassionate appointment, the High Court was moved in a Writ Petition in which a learned Single Judge issued a direction for reconsideration of the claim for appointment. During the pendency of the appeal before the Division Bench, the Scheme for compassionate appointment was replaced by a new Scheme providing for ex gratia in lieu of appointment. The main issue which fell for consideration before this Court was whether the subsequent Scheme which was formulated in 2005 providing for ex gratia payment would govern or whether the application would have to be disposed of on the basis of the earlier Scheme of 1993. It may be noted that the application for compassionate appointment in that case had been rejected on the ground that the family of the respondent was not in indigent circumstances, as required by the Scheme for compassionate appointment of 1993.
Dealing with the applicability of the subsequent Scheme, a Bench of two-Judges of this Court held, following the earlier decision in State Bank of India Vs. Jaspal Kaur11, that the cause of action to be considered for compassionate appointment arose when the earlier Scheme was in force. Hence, the claim could not be decided on the basis of the subsequent Scheme which 11 (2007) 9 SCC 571 provided only for the payment of ex gratia. Moreover, as a matter of fact, the subsequent scheme was superseded in 2014 by reviving the Scheme for the provision of compassionate appointment.
Hence, the issue which has been dealt with in Canara Bank (supra) is whether the application for grant of compassionate appointment could have been rejected on the basis of a scheme which had come into force after the date of submission of the application. That, as this Court observed, was the main question which fell for consideration. The Bench of two-Judges, however, also noted that it was urged on behalf of the appellant - Bank that the family of the respondent was in receipt of family pension. This, the Court held, was of no consequence in considering the application for compassionate appointment.
Learned senior counsel appearing on behalf of the appellants has sought to distinguish the above observations, in the judgment in Canara Bank (supra), by submitting that it is not the case of the State of Himachal Pradesh that mere receipt of family pension would disable an applicant from submitting an application for compassionate appointment or preclude consideration of the claim. On the contrary, the submission which is urged is that the Scheme requires consideration of all relevant sources of income and hence, receipt of family pension would be one of the criteria which would be taken into consideration in determining as to whether the family of the deceased employee is in indigent circumstances.
We find merit in this submission, for the simple reason, that it is in accord with the express terms of the Scheme of 18 January 1990, as modified by the State. The Scheme contemplates that payments which have been received on account of welfare measures provided by the State including family pension are to be taken into account. Plainly, the terms of the Scheme must be implemented.Page 29 of 32
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For these reasons, we have come to the conclusion that the High Court was not justified, based on the decision in GovindPrakashVerma (supra) in issuing a direction to the State to act in a manner contrary to the express terms of the Scheme which require that the family pension received by the dependants of the deceased employee be taken into account.
That leads the Court to the next aspect of the matter relating to the fixation of an income slab. In our view, the fixation of an income slab is, in fact, a measure which dilutes the element of arbitrariness. While, undoubtedly, the facts of each individual case have to be borne in mind in taking a decision, the fixation of an income slab sub serves the purpose of bringing objectivity and uniformity in the process of decision making.................................
".......... What should be the appropriate income criterion is undoubtedly a matter of policy for the State Government to determine. However, we would impress upon the State Government the need to periodically revise the income limits preferably at intervals of three years. Inflation and the increase in the cost of living have an important bearing on financial exigencies faced by families of serving as well as deceased employees. In fixing the income criteria for considering cases of compassionate appointment, it would be appropriate if the State revisits the income limit at periodic intervals, as we have indicated above. We clarify that it would be open to the State to revise the income limits at a frequency of less than three years, if the State is so advised.
Insofar as the individual facts pertaining to the respondent are concerned, it has emerged from the record that the Writ Petition before the High Court was instituted on 11 May 2015. The application for compassionate appointment was submitted on 8 May 2007. On 15 January 2008 the Additional Secretary had required that the amount realized by way of pension be included in the income statement of the family. The respondent waited thereafter for a period in excess of seven years to move a petition under Article 226 of the Constitution. In Umesh Kumar Nagpal (supra), this Court has emphasized that the basis of a scheme of compassionate appointment lies in the need of providing immediate assistance to the family of the deceased employee. This sense of immediacy is evidently lost by the delay on the part of the dependant in seeking compassionate appointment.
We are not impressed with the submission that delay should not be taken into account since Paragraph 8 of the Scheme contemplates that in a situation where all the dependant children of the deceased employee have yet to attain the age of majority, the time limit for submission of an application is extended until the first of the children attains the age of twenty one years. A case where each of the children is a minor falls in a different class altogether. This cannot be equated with a situation where a dependant of a deceased employee who was a major on the date of death fails to submit an application within a reasonable period of time from the death of the employee. This aspect of delay has been dealt with in other decisions of this Court, including State of J&K Vs. Sajad Page 30 of 32 CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors.
Ahmed Mir12 and Local Administration Department Vs. M. Selvanayagam13.
We see no reason or purpose in now directing the State to reconsider its decision in the case of the respondent which would only result in another round of fruitless litigation. In our view, the respondent is debarred from seeking compassionate appointment by the delay as well as by the lapse of time which has taken place....."
14. Then again as regards compliance of conditions of Scheme for compassionate appointment it has been held as under in the matter of Indian Bank vs Promila, judgement date - 8 January, 2020, Bench: Author: Hon' Sanjay KishanKaul J., Bench:
Sanjay KishanKaul, K.M.,JosephCivil Application No. 2798 of 2010it has been held as under:
"......17. We have to keep in mind the basic principles applicable to the cases of compassionate employment, i.e., succor being provided at the stage of unfortunate demise, coupled with compassionate employment not being an alternate method of public employment. If these factors are kept in mind, it would be noticed that the respondents had the wherewithal at the relevant stage of time, as per the norms, to deal with the unfortunate situation which they were faced with. Thus, looked under any Schemes, the respondents cannot claim benefit, though, as clarified aforesaid, it is only the relevant Scheme prevalent on the date of demise of the employee, which could have been considered to be applicable, in view of the judgment of this Court in Canara Bank3. It is not for the Courts to substitute a Scheme or add or subtract from the terms thereof in judicial review, as has been recently emphasized by this Court in State of Himachal Pradesh &Anr. v. Parkash.."
15. Similar view is expressed in Canara Bank [Canara Bank v. M. Mahesh Kumar,(2015) 7 SCC 412 : (2015) 2 SCC (L&S) 539] - wherein it is held that -
"...It is notfor the courts to substitute a Scheme or add or subtractfrom the terms thereof in judicial review..."Page 31 of 32
CAT,Lucknow Bench O.A. No. 474/2018 - Deepak Narula Vs. U.O.I &Ors. Therefore, outside the scheme nothing can be considered. And we have seen above that the applicant is not eligible per the scheme as enshrined in the circular guidelines relied upon by the respondents.
16. This just about takes the entire wind out of the bag of arguments of the applicant and brings us to the final conclusion - viz -that this Tribunal cannot now help the applicant further in terms of his plea for compassionate appointment.
17. Thus, on the basis of the discussions heretofore the O.A has no merits and is liable to be dismissed and is dismissed.
18. No costs. MAs pending if any stand disposed.
(Devendra Chaudhry) Member-Administrative vidya Page 32 of 32