Calcutta High Court (Appellete Side)
Sri Santosh Kumar Sahoo vs Union Of India & Ors on 3 August, 2016
Author: Tapabrata Chakraborty
Bench: Nishita Mhatre, Tapabrata Chakraborty
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Nishita Mhatre
&
The Hon'ble Justice Tapabrata Chakraborty
W.P.C.T 201 of 2015
Sri Santosh Kumar Sahoo
Versus
Union of India & Ors.
For the Petitioner : Mr. Chittaranjan Panda,
Mr. Ganesh Chandra Chakraborty.
For the Respondent
Nos.1 to 6 : Mr. Sandip Kumar Bhattacharyya. For the Respondent Nos. 7 & 8 : Mr. Rajesh Sen. Hearing is concluded on : 27.7.2016. Judgment On : 3rd August, 2016. Tapabrata Chakraborty J. :
1. The instant writ petition has been preferred challenging an order dated 3rd September, 2015 passed by the learned Tribunal in OA 169 of 2013.
2. Shorn of unnecessary details, the facts are that the petitioner's father died-in-harness on 28th November, 2005 while working in the post of an Accountant under the respondent authorities. The petitioner's mother made an application to the authorities on 19th May, 2006 for grant of compassionate appointment to the petitioner. Responding to the same, an enquiry was conducted and a screening committee found the petitioner fit to be called for an interview. The petitioner was called for an interview by a letter dated 16th August, 2006 and he duly appeared before the interview board on 14th December, 2007. By a letter dated 3rd January, 2008 the petitioner's prayer was not acceded to in view of the latest government orders. The relevant government orders and the names of the candidates who have been given compassionate appointment since the year 2006 were sought for through an application under the Right to Information Act. In response thereto, some office memoranda were forwarded to the petitioner on 20th July, 2010. Aggrieved by the denial of the respondents to grant compassionate appointment, the petitioner approached the learned Tribunal through OA 169 of 2013. Upon contested hearing, the said original application was dismissed by an order dated 12th January, 2015 passed by a learned Administrative Member. Aggrieved by the said order, the petitioner filed a writ petition being WPCT 55 of 2015 and the same was disposed of by an order dated 18th March, 2015 setting aside the order passed by the learned Administrative Member and directing the Registrar of the learned Tribunal to list the matter before an appropriate Division Bench consisting of at least one Judicial Member. Pursuant thereto, the matter was placed before the a Bench consisting of a learned Judicial Member and the same learned Administrative Member, who passed the earlier order dated 12th January, 2015 in OA 169 of 2013. The petitioner's claim was again rejected by the learned Tribunal by an order dated 3rd September, 2015.
3. Records reveal that as per leave granted by this Court on 11th May, 2016 one Sri Akash Biswas and one Sri Prasenjit Pakira were impleaded as respondent nos.7 and 8 to the writ petition. The said respondents have filed their respective affidavits-in-opposition and the respondent nos.2 to 6 have filed an affidavit-in-opposition and also a supplementary affidavit.
4. Mr. Panda, learned advocate appearing for the petitioner submits that the selection process was undertaken to fill up two Group C posts and one Group D post. The respondents, according to him, have not appropriately considered the indigence and penury of the respective families of the competing candidates seeking appointment on compassionate ground. Drawing the attention of this Court to the minutes dated 4th December, 2007 of the meeting of the screening committee, he submits that upon being satisfied about the financial stringency faced by the family, the petitioner was called for an interview. However, the minutes of the meeting dated 14th December, 2007 of the interview committee would reveal that the petitioner was ousted from the zone of consideration by simply stating that he was not suitable for appointment as Clerk/Typist or as a Group- 'D' staff on the basis of his performance in the interview. Due to absence of any indication in the minutes as to why the petitioner was not found suitable it is impossible to ascertain the genuineness of such action. The minutes would further reveal that the respondent no.8 was also not found suitable for the post of Clerk/Typist, however, he was given appointment in a Group D post. The respondents have practised discrimination and the private respondents were appointed in derogation to the provisions of the scheme towards grant of compassionate appointment.
5. He further submits that after the matter was remanded back, a bench was constituted of a learned Judicial Member and of the learned Administrative Member, who had rejected the petitioner's claim earlier. For the ends of justice, the said learned Administrative Member ought to have recused herself from hearing the self-same matter.
6. Per contra, Mr. Bhattacharyya, learned advocate appearing for the respondents submits that the respondents have acted in strict consonance with the provisions of the scheme for compassionate appointment (hereinafter referred to as the said scheme) as detailed in the circular dated 9th October, 1998. The competing candidates were interviewed and the petitioner could not emerge to be successful in the selection process and he was declared unsuitable by a properly constituted interview committee upon careful consideration of all factors. There is no allegation of any malafide against the members of the interview committee. Furthermore, the petitioner having participated in the selection process and upon being unsuccessful, he cannot turn back and challenge the same.
7. According to him, the authorities ascertained the indigence and penury of the families of the deceased employees by taking into consideration the pensionary benefits availed and the liabilities existing at the time of death of the concerned employees. The determination of the financial stringency faced by the family of the deceased employee was the prime consideration towards grant of compassionate appointment. Such financial stringency has been ascertained upon proper enquiry and there is no infirmity in such decision making process.
8. He further submits that the members of the interview committee erroneously referred the case of the respondent no.7 to the head quarters for relaxation of the monetary ceiling towards consideration for appointment on compassionate ground inasmuch as on the date of such interview the ceiling limit stood revised on the basis of the Revision of Pay and Allowances Rules. By reason of a typographical error in the minutes of the interview committee it was incorporated that the family of the respondent no.8 received more than Rs.50 lakhs on account of terminal benefits in place and stead of Rs.4.5 lakhs. Such errors cannot be construed to have maligned the decision making process.
9. He further argues that the petitioner's father expired on 29th November, 2005. The petitioner's claim was rejected by a properly constituted interview committee in the year 2007 and the final order was passed by the learned Tribunal on 3rd September, 2015. For the consequential efflux of time the claim of the petitioner towards compassionate appointment does not survive.
10. In support of his arguments, Mr. Bhattacharyya has placed reliance upon the following judgments :-
1) Umesh Kumar Nagpal -vs- State of Haryana & Others, reported in (1994) 4 SCC 138;
2) State Bank of India & Anr. -vs- Raj Kumar, reported in (2010) 11 SCC 661;
3) Local Administration Department & Anr. -vs- M. Selvanayagam alias Kumaravelu, reported in (2011) 13 SCC 42;
4) Lila Dhar -vs- State of Rajasthan and Others, reported in (1981) 4 SCC 159;
5) Dr. G. Sarana -vs- University of Lucknow and Others, reported in (1976) 3 SCC 585;
6) Pradeep Kumar Rai and Others -vs- Dinesh Kumar Pandey and Others, reported in (2015) 11 SCC 493.
11. In reply, Mr. Panda submits that the financial condition of the respective families was considered upon adjusting the liabilities existing on the date of death of the concerned employee from the amount received by the respective families towards pensionary benefits. The figures stated in the summarised chart would reveal that the petitioner's family got the least amount towards pensionary benefits and the amount of liability existing on the date of death of the petitioner's father was also the least compared to that of the families of the respondent nos.7 and 8. The liability of the family of the respondent no.7 to the tune of Rs.8,31,000/- was pertaining to personal loans, credit card debts. The family of a deceased employee could not have been penalised for having lesser liability in the form of loans. The riders, as applied by the respondents towards ascertainment of financial hardship, are absolutely unfounded and erroneous and such infirmity maligns the decision making process.
12. A close perusal of the order dated 12th January, 2015 passed by Ms. Jaya Das Gupta, learned Administrative Member in OA 169 of 2013 reveals that the petitioner's claim was rejected mainly on two grounds. First, after a period of 9 years from the date of death of the petitioner's father, the claim towards compassionate appointment cannot survive. Second, the petitioner was not found to be suitable for the post of Clerk/Typist or for the post of Group-'D' by the interview committee. A perusal of the subsequent order dated 3rd September, 2015 passed by in OA 169 of 2013 would also reveal that the self-same grounds have been repeated. The said order was passed by a bench consisting of a Judicial Member and the learned Administrative Member, who rejected the petitioner's claim earlier. In the facts of the case and for the ends justice, it was imperative for the said learned Administrative Member to recuse herself from being a part of the Division Bench [See paragraph 6 of the judgment delivered in the case of Sujasha Mukherji versus The Hon'ble High Court, Calcutta, reported 2015(2) CHN (SC) 165].
13. In paragraph 4(d) of the counter reply filed by the respondent nos.2 to 6 to the original application runs as follows:
"In terms of the aforesaid circular, it is clear that while taking a decision on the question of suitability of any applicant, the Screening Committee does have the obligation to choose a better candidate amongst multiple candidates, when factors such an educational qualifications and financial conditions are similar."
14. The same averments have been repeated by the self- same respondents in paragraph 5(l) of the affidavit-in-opposition to the present writ petition.
15. It has been admitted by the respondents that the petitioner after graduation in the year 2000 enhanced his qualifications in the year 2002 by performing outstandingly in a new branch of education being "hardware" qualified in computers. The respondent no.7 is having a qualification of Bachelor of Science (Economics Hons.) and he completed DOS, windows in computers. The respondent no.8 is having a qualification of matriculation.
16. On the date of interview, the family of the petitioner was enjoying death benefits to the tune of Rs.3,25,253/- whereas its liability was to the tune of Rs.1,86,009/-. The family of the respondent no.7 was enjoying death benefits to the tune of Rs.5,23,338/- whereas its liability was of Rs.8,31,000/-. The respondent no.8 was enjoying death benefits to the tune of Rs.3,71,810/- whereas its liability was of Rs.3,00,000/-.
17. Thus admittedly the educational qualifications of the respective candidates and the financial conditions of the respective families were dissimilar. Application of such facts to the averments made in paragraphs 4(d) of the reply and in paragraph 5(l) of the affidavit-in-opposition to the present writ petition, leads to a conclusion that while taking a decision on the question of suitability, the screening committee did not have any obligation to choose a better candidate amongst the multiple candidates. It is thus explicit that the interview committee did not determine the suitability of the respective candidates and did not grant any weightage towards suitability.
18. Before proceeding further the following clauses of the scheme for compassionate appointment needs to be quoted:
5. Eligibility
(a) The family is indigent and deserves immediate assistance for relief from financial destitution; and
(b) Applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules.
12. Procedure
(a) The proforma as in Annexure may be used by Ministries/Departments/Officers for ascertaining necessary information and processing the cases of compassionate appointment.
(b) The Welfare Officer in each Ministry/Department/Office should meet the members of the family of the Government servant in question immediately upon his death to advise them in getting appointment on compassionate grounds. The applicant should be called in person at the very first stage and advised in person about the requirements and formalities to be completed by him.
(c) An application for appointment on compassionate ground should be considered in the light of the instructions issued from time to time by the Department of Personnel and Training (Establishment Division) on the subject by a committee of officers consisting of three officers-one Chairman and two Members -of the rank of Deputy Secretary/Director in the Ministry/Department and officers of equivalent rank in the case of attached and subordinate officers. The Welfare Officer may also be made one of the Members/Chairman of the committee depending upon his rank. The committee may meet during the second week of every month to consider cases received during the previous month. The applicant may also be granted personal hearing by the committee, if necessary, for better appreciation of the facts of the case.
(d) Recommendation of the committee should be placed before the competent authority for a decision. If the competent authority disagrees with the committee's recommendation, the case may be referred to the next higher authority for a decision.
16. General
(c) The Scheme of compassionate appointments was conceived as far back as 1958. Since then a number of welfare measures have been introduced by the Government which have made a significant difference in the financial position of the families of the Government servants dying in harness/retired on medical grounds. An application for compassionate appointment should, however, not be rejected merely on the ground that the family of the Government servant has received the benefits under the various welfare schemes. While considering a request for appointment on compassionate ground a balanced and objective assessment of the financial condition of the family has to be made taking into account its assets and liabilities (including the benefits received under the various welfare schemes mentioned above) and all other relevant factors such as the presence of an earning member, size of the family, ages of the children and the essential needs of the family, etc.
19. A perusal of the said scheme, particularly, clause 12 does not disclose any provision towards any interview for determination of suitability of the applicants. Clause 16(c), however, specifies that while considering a request for appointment on compassionate ground a balanced and objective assessment of the financial condition of the family has to be taken into account. A clarificatory circular dated 9th March, 2009, annexed at page 57 of the supplementary affidavit, inter alia, provides "that the monetary criteria would primarily serve as a tool for prioritizing applicants. Its satisfaction would be an important but not a necessary condition for accepting applications for appointments on compassionate ground. All cases where applications are accepted even if monetary parameters are exceeded, should be justified through a reasoned speaking order which should meet the test of consistency".
20. A composite reading of the averments made in paragraph 4(d) of the counter reply, the averments made in paragraph 5(l) of the affidavit-in-opposition to the present writ petition, the provisions of the said scheme and the clarificatory circular would reveal that prioritization of applicants is dependant upon indigence of the family. The criterion towards selection was on the basis of penury and not merit. The word 'suitability' has to be understood in the light of the said scheme. The scheme does not lay down any procedure or manner in which the suitability of a candidate has to be assessed. The petitioner, being eligible and his family being in a distressful condition, ought to have been considered for grant of compassionate appointment.
21. The word 'suitability' has not been used in the said scheme in contradistinction to the word 'eligibility'. Conceptual suitability, preference or prioritization, fundamentally, would mean that all aspects, namely, merit, suitability, fitness, etc. being equal, preference is given, regard being had to some other higher qualifications or experience, etc. Preference or suitability, in the context of competitive scheme of selection would mean that other things being qualitatively and quantitatively equal, those with the additional qualification have to be preferred. Such proposition is not applicable to a scheme for appointment on compassionate ground in posts in the lower stratum.
22. Clause 12(d) of the said scheme provides that the recommendations of the committee should be placed before the competent authority for a decision and in the event the competent authority disagrees with the interview committee's recommendation the case has to be referred to the higher authority for a decision. In the instant case no record has been produced disclosing as to whether recommendation of the interview committee was placed before the competent authority for a decision and as to whether the competent authority agreed or disagreed with such decision. The respondents conducted an interview though there is no such provision in the scheme. It thus appears that the respondents have proceeded in a manner not specified in the said scheme and has acted in derogation to the provisions of the said scheme. Such action is not sustainable in law. It is a settled proposition of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in case of a statutory authority, it is just the other way. The authority has no power to do anything unless those powers are conferred on it by the statutes, which creates it [See Asian Leather Limited versus K.M.C., reported in 2007(3) CHN 476].
23. The petitioner's father expired on 29th November, 2005, the application was made immediately thereafter. The petitioner was called for an interview on 14th December, 2007. Challenging the decision of the interview committee the petitioner immediately approached the learned Tribunal by OA 169 of 2013. The learned Tribunal ultimately rejected the original application almost two years thereafter on 12th January, 2015. The writ petition filed by the petitioner immediately thereafter challenging the said order, was disposed of on 18th March, 2015 and upon constitution of a Division Bench the learned Tribunal passed an order on 3rd September, 2015 and immediately thereafter the instant writ petition was filed on 15th October, 2015. From the said sequence of facts it is explicit that there was no delay on the part of the petitioner and for the efflux of time due to pendency the matters before the learned Tribunal, the petitioner cannot be made to suffer who had suffered the vagaries of life during the entire period.
24. An employee, who availed personal loans and could not repay the same during his lifetime cannot be similarly situated with an employee who did not secure any personal loan and did not leave behind any liability on the date of his death. Comparison of the benefits availed and the liabilities existing in respect of the families of the petitioner and the respondent nos.7 and 8 respectively would lead to the sole conclusion that the petitioner has been denied appointment since his father at the time of his death did not leave behind any liability as high as that of the liabilities left behind in respect of the respondent nos.7 and
8. The process adopted by the respondents towards ascertainment of financial distress is unreasonable and it constitutes legal malice. "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, "it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others" (See Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989).
25. There is no dispute as regards the proposition of law, as laid down in the case of Umesh Kumar Nagpal (supra) to the effect that the only ground which can justify compassionate appointment is the penurious condition of the deceased's family and in the case of State Bank of India & Anr.(supra) to the effect that claim for compassionate appointment is traceable only to a specific scheme and that there is no right whatsoever outside such scheme. In the instant case the delay which has occasioned is not attributable to the petitioner and the need for the job subsists and that as such the ratio of the judgment delivered in the case of Local Administration Department & Anr.(supra) is not applicable to facts of the instant case. The judgments delivered in the cases of Lila Dhar (supra), Dr. G. Sarana (supra) and Pradeep Kumar Rai and Others (supra) pertain to a regular selection process and have no manner of application in the instant case.
26. For the reasons discussed above, the order dated 3rd September, 2015 passed by the learned Tribunal in OA 169 of 2013 is not sustainable in law and the same is, accordingly, set aside and the writ petition is allowed.
27. It is well settled that once the Court holds that the respondents have acted unreasonably and in derogation to the statute or scheme, the Court itself can grant the relief and need not direct the petitioner to approach the authorities for reconsideration [See paragraph of the judgment delivered in the case of Government of India & Ors. versus B. Anil Kumar & Ors., reported ii 2010 (4) Supreme 77]. As we have already arrived at a finding that the process adopted by the respondents towards ascertainment of financial distress was unreasonable and derogatory to the said scheme, question of further relegation of the petitioner's claim to the authorities for reconsideration does not occasion.
28. Accordingly, the respondents are directed to grant compassionate appointment to the petitioner in any post having regard to his educational qualifications, within a period of six weeks from date. It is, however, made clear that as the respondent nos. 7 and 8 have already been appointed and are working since 2009 and 2007 respectively, their appointment shall not be interfered with for accommodation of the petitioner.
There shall, however, be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Tapabrata Chakraborty, J.) (Nishita Mhatre, J.) Later Mr. Bhattacharyya, the learned counsel appearing for the respondent nos.1 to 6 prays for stay of this judgment.
Prayer is refused for the reasons mentioned in the judgment.
(Tapabrata Chakraborty, J.) (Nishita Mhatre, J.)