Central Administrative Tribunal - Delhi
Coram vs Raj Kumar on 3 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHLI
O.A.NO. 4137 OF 2012
New Delhi, this the 3rd day of December, 2013
CORAM:
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
..
Rachna,
w/o late Sh.Navin Kumar,
D/o Shri Rohtash Kumar,
Gali No.1, Jeetpur Colony,
Rawli Road, Muraadnagar,
Distt.Ghaziaad,
Uttar Pradesh . Applicant
Advocate for applicant Shri Rahul Kripalani
Vrs.
Chairman & Managing Director,
Housing & Urban Development Corporation Ltd.,
HUDCO Bhawan, Core-7-A,
India Habitat Centre,
Lodhi Road,
New Delhi 110 003 . Respondent
Advocate for respondent Shri Rajinder Dhawan with
Shri B.S.Rana
..
O R D E R
Honble Shri Raj Vir Sharma, Judicial Member:
In this Original Application, the applicant has prayed for the following relief:
(a) Pass an order directing the Respondent No.1 to grant appointment to the petitioner in the Non-Executive Cadre, with all attendant benefits.
Pass an order directing the Respondent No.1 to immediately release all amounts due to the petitioner.
Pass such other orders, and as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. The applicants husband, Mr.Naveen Kumar, while serving as a regular employee in Non-Executive Cadre under the respondent-Housing & Urban Development Corporation Ltd. (HUDCO), died on 9.11.2006. The applicant was asked by the respondent, vide letter dated 23.11.2006, to furnish the Savings Bank Account details, the address of the Bank and an undertaking for settlement of Employees Deposit Linked Insurance (EDLI) and Group Savings Linked Insurance (GSLI) claims on the death of her husband. By representation dated 29.11.2006 she requested the respondent to provide her appointment on compassionate grounds. By her letter on 8.1.2007, while intimating the respondent that the required information was already submitted, she requested the respondent to release the EDLI and GSLI amounts. She also submitted a representation dated 22.2.2007 to the respondent to provide her appointment on compassionate grounds and to release the aforesaid dues to her. In response to her application dated 30.3.2007 seeking information under the Right to Information Act, the Central Public Information Officer of the respondent, vide letter dated 1.5.2007 intimated the applicant that the process for her appointment on compassionate ground had been initiated. The applicant by her letter dated 20.7.2007 also reminded the respondent to provide appointment on compassionate grounds. Apparently, in response to the applicants letter dated 20.7.2007, the Central Public Information Officer of the respondent, vide his letter dated 30.7.2007, intimated the applicant that her request for employment on compassionate ground was still under process. While the matter stood thus, in reply to an undated RTI query, the Central Public Information Officer of the respondent, vide his letter dated 8.5.2008, informed the applicant that Clause 14.6 of the HUDCO Recruitment and Promotion Rules, 1994 provides for appointment of the spouse on compassionate grounds in the event of the death of a regular employee in harness and that though application of the applicant seeking appointment on compassionate grounds was received, yet the same was pending as there was a ban on recruitment in Non-Executive Cadre from 30.11.2006. Thereafter on behalf of the applicant a legal notice was served on the respondent in the matter of providing her appointment on compassionate grounds. On the submission of the required Succession Certificate by the applicant, the respondent, vide letter dated 23.10.2008, informed her of the amounts owed to and by her husband. In response to the legal notice, the respondent, by letter dated 28.11.2008, stated that the applicant and her father had constantly been intimated by the respondent that the provision for appointment on compassionate grounds was frozen for Non-Executive positions and that a new policy was under consideration and once such policy is approved, the applicants case may be considered as per that policy. Thereafter the applicant, by her letters dated 14.5.2010 and 11.1.2011, requested the respondent to pay her the pending dues together with pension at the earliest and to provide her appointment on compassionate grounds. The respondent, by letter dated 21.3.2011, intimated the applicant that there is no provision to give her appointment on compassionate grounds. Only on 20.6.2011, i.e., almost five years after the death of her husband, the applicant was paid the CPF amount and outstanding dues. In reply to the applicants letters dated 27.2.2012 and 16.3.2012 regarding payment of pension to her, the respondent, by letter dated 16.7.2012, asked the applicant to furnish another Succession Certificate as there was no nominee on record for the implementation of the HUDCO Employees Social Security Scheme. The respondent also by letter dated 13.9.2012 informed the applicant that she is entitled to be paid Rs.9 lakhs as a one-time settlement and that there is no provision for interest on delayed payment under the Scheme (ibid). Challenging the action and/or inaction of the respondent in the matter, the applicant, being unaware of the notification dated 1.12.2008 making the respondent HUDCO amenable to the jurisdiction of this Tribunal, had approached the Honble High Court of Delhi by filing Writ Petition (Civil) No. 3024 of 2012. The Honble High Court permitted withdrawal of the said writ petition and granted liberty to the applicant to approach this Tribunal. Hence the present Original Application has been filed for the aforesaid relief.
3. In the O.A. the applicant has contended that the purpose of appointment on compassionate grounds is to provide for and give a sense of security to a bereaved family in their hour of need and there cannot be a delay caused in the consideration of a person for compassionate appointment. While compassionate employment is not a vested right and cannot be exercised as and when desired by the family of the deceased employee, in the face of an application made at the earliest possible, the employer must act with haste. In support of this contention, the applicant has relied on Smt. Sushma Gosai and others v Union of India and others, (1989) 4 SCC 468. There being an express provision of appointment on compassionate grounds in the service rules of the respondent-HUDCO, the applicant has a right to be considered for such appointment. In this connection, she has referred to Raja Ram v. Delhi Development Authority, through Management, New Delhi (TA No.99/2007). It has also been contended that the communications received from time to time by the applicant from the respondent intimating the applicant that her request for compassionate appointment was being processed, that the provision for employment on compassionate grounds had been frozen for Non-Executive employees, and that there was no policy in force for employment on compassionate grounds and that when a policy is formulated, the respondents may consider her request, clearly establish that the respondent has failed to address the issue in its proper perspective The applicant, referring to Yogender Pal Singh v. Union of India, (1987) 1 SCC 631, has submitted that even preferential treatment granted to the next of kin of employees who die in harness in their appointment would not run counter to the right secured in Article 16 of the Constitution of India. It has also been submitted by the applicant that she has a legal right to be considered for appointment on compassionate grounds by virtue of Rule 14.6 of the HUDCO Recruitment and Promotion Rules, 1994 and that the attempt by the respondent HUDCO to create a situation of confusion wherein the applicant is unclear as to her rights for several years on end must be decried. The established doctrine of legitimate expectation must govern a situation such as this. Public power is a trust which must be exercised in the best interest of its beneficiaries the people. Inconsistency of policy may amount to abuse of discretion, particularly when undertakings or statements of intent are disregarded unfairly or contrary to the citizens legitimate expectation. If a published policy is to be changed, the applicant should be given serious and full consideration whether there is some overriding public interest justifying the new departure. A public authority has a duty to act with fairness and consistency in its dealings with the public. If it makes inconsistent decisions unfairly or unjustly, it misuses its powers. In this context, the applicant has referred to Food Corporation of India v. Messrs Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71. The applicant has submitted that there is no sign of serious consideration of her case at all; rather all pointers seem to indicate that there is a concentrated effort by the respondent HUDCO to bring her case within the ambit of a new and unannounced Scheme without any justification as to the pressing need for the same. The applicant has also cited Balbir Kaur ad others v. Steel Authority of India, (2000) 6 SCC 493, to contend that the employer cannot claim that the payment of monetary benefits claimed to be enough to sustain the family of the deceased is ground enough to deny compassionate employment to the next of kin.
4. So far as the HUDCO Employees Social Security Scheme, 2010 is concerned, the applicant has submitted that the said Scheme is not applicable to her case since the retroactive application of the Scheme violates Article 14 of the Constitution of India. A retroactive law is one that takes away or impairs vested or accrued rights acquired under existing laws, as held in State Banks Staff Union, Madras v Union of India and others, (2005) 7SC 584. In this connection, the applicant has also referred to A.Ksheera Sagar v. A.P.Dairy Development Co-op., 1997 (3) ALT 751 (Andhra Pradesh High Court).
5. The respondent has resisted the claim of the applicant by filing a detailed counter. It is stated by the respondent that the rule relating to appointment on compassionate grounds has undergone a change and since 2010 the said rule has ceased to exist. The said rule has been replaced by HUDCO Employees Social Security Scheme under which only financial benefits have to be provided. The said Scheme was announced on 10th March, 2010. It is specifically prescribed in Rule 5 of the said Social Security Scheme that the scheme will cover/be applicable to cases of death which have taken place in/after November 2006 and the Scheme is in lieu of compassionate appointment. The Scheme was given retrospective effect in view of the fact that the recruitment on compassionate grounds was banned since 30th November, 2006 in HUDCO and since then no recruitment on compassionate grounds was made in HUDCO. Though Rule 14.6 of the HUDCO Recruitment & Promotion Rules, 1994 prescribed recruitment on compassionate grounds, yet the said Rule is applicable only when there is a vacancy and the competent authority decides to recruit the persons to fill up the said vacancy. The said 1994 Rules were replaced by HUDCO Recruitment & Promotion Rules, 2011 wherein there is no provision for making recruitment on compassionate grounds. In view of the economic conditions prevalent in the world, particularly in India and stiff competition faced by it, the respondent engaged Ernest & Young, a well known management consultants firm to study and suggest measures to make HUDCO cost effective and increase its capacity of competitiveness qua other financial institutions. The said consultant, inter alia, opined that HUDCO and particularly in non-executive cadre was over staffed. Considering the opinion of the said consultant, the Committee headed by the Secretary to Government of India, Hosing & Urban Poverty Alleviation, vide letter dated 30.11.2006, recommended freezing of recruitment in the non-executive cadre and introduction of a focused VRS. Rule 14.6 (ibid) conferred no right on the applicant to any appointment. Appointment on compassionate grounds was uncertain and dependent, inter alia, upon several factors, such as, availability of a vacancy, managements decision to fill up the said vacancy, initiation of recruitment process, eligibility of the applicant, date of application made by the applicant qua applications of other similar applicants, subject to ceiling, as mentioned in O.M. dated 9.10.1998 issued by the DoP&T. Since the date of the applicants letter requesting for providing her appointment on compassionate grounds, there has been no recruitment made by the respondent on compassionate grounds in any cadre. The Social Security Scheme gives a definite financial benefit to the nominee of the deceased employee. The said amount is besides the amount which the nominee would get by way of terminal benefits of the deceased employee including provident fund, gratuity amount, etc. Moreover, under the Employees Provident Fund and Miscellaneous Provisions Act, the heirs of the deceased employee would get family pension. The application of the applicant for family pension has been forwarded to the Regional Provident Fund Commissioner by the respondent. So far as the payment of CPF, Gratuity, etc., is concerned, the respondent has stated that the applicant was not nominated by her husband to receive the same amounts. Mrs.Asha, the mother of the deceased employee and mother-in-law of the applicant had also claimed payment of the aforesaid benefits. In view of this, the applicant was advised to obtain Succession Certificate. Both the applicant and her mother-in-law Mrs.Asha had filed separate applications seeking Succession Certificate, vide Case Nos. 480/07 and 596/07, which were decided by the learned Administrative Civil Judge(Central), Delhi, vide a common judgment dated 3.11.2010. Copy of the said judgment and Succession Certificate was submitted to the respondent on 11.1.2011, after which the aforesaid benefits were released in favour of the applicant and Mrs.Asha (mother-in-law of the applicant) in equal shares on the basis of the said Succession Certificate. As the Succession Certificate furnished by the applicant did not include the amount payable under the Social Security Scheme, which had not come into force when the applicant had made application for Succession Certificate, the amount payable under the said Scheme could not be disbursed. The mother-in-law of the applicant, vide her letter dated 31.5.2012, had also claimed the benefits under the said Scheme. As sought for by her, the applicant was furnished the details of the benefits payable under the said Scheme to obtain Succession Certificate. The applicants mother-in-law also intimated the respondent that she had also applied for Succession Certificate in respect of the benefits payable under the said Scheme. As none of them has filed the Succession Certificate, the amount payable under the Social Security Scheme could not be disbursed and hence the delay in settlement of the said benefits cannot be attributed to the respondent. In the above view of the mattes, the respondent has prayed for dismissal of the Original Application.
6. The applicant has not filed rejoinder controverting the stand taken by the respondent in its counter.
7. I have heard Shri Rahul Kripalani, learned counsel for the applicant, and Shri Rajinder Dhawan with Shri BS.Rana, the learned counsel representing the respondent. I have carefully perused the pleadings of the parties. Besides placing reliance on the case-laws cited in the Original Application, Shri Kripalani has also cited a judgment of the Honble Supreme Court in Civil Appeal No.3581 of 2009 (arising out of SLP ( C ) No.16263 of 2006), decided on 15.05.2009, Maharani Devi and another v. Union of India and others, in support of his submissions. Shri Dhawan, the learned counsel for the respondent, has placed reliance on the decisions of the Honble Supreme Court in Hindustan Aeronautics Ltd. v. A.Radhika Thirumalai(Smt), (1996) SCC 394; Haryana State Electricity Board v. Krishna Devi, JT 2002 (3) SC 485; and State Bank of India and another v. Raj Kumar, (2010) 11 SCC 661. The case laws cited by the learned counsel for the parties have been perused by me.
8. From the pleadings of the parties, the following questions emerge for consideration of this Tribunal:
(i) Whether the applicant is entitled to appointment on compassionate grounds under Rule 14.6 of the HUDCO Recruitment & Promotion Rules, 1994; and
(ii) Whether the applicants case is covered by the HUDCO Employees Social Security Scheme, dated 10.3.2010 and she is entitled to the benefit under the said Scheme in lieu of compassionate appointment.
9. In this case, the husband of the applicant died in harness on 9.11.2006 and the applicant made the application on 29.11.2006 requesting the respondent to provide her appointment on compassionate grounds. Rule 14.6 of the HUDCO Recruitment and Promotion Rules, 1994 prescribed that the spouse, son or daughter of a regular employee, who dies in harness, including death by suicide, may be recruited at an appropriate level on the basis of the qualification, experience, etc., on compassionate grounds with the approval of the Chairman and Managing Director. On the basis of the opinion of the expert engaged to study and suggest measures to make respondent-HUDCO cost effective and increase its capacity of competitiveness qua other financial institutions and the recommendation of the Committee headed by the Secretary to the Government of India, Housing & Urban Poverty Alleviation, the respondent took a policy decision to freeze recruitment in non-executive cadre with effect from 30.11.2006. Rule 14.6(ibid) did not confer a right on the applicant to be appointed on compassionate grounds. Appointment on compassionate grounds was dependent, inter alia, upon several factors, such as, availability of vacancy, managements decision to fill up the said vacancy, initiation of recruitment process, eligibility of the applicant, date of application made by the applicant qua applications of other similar applicants. It is not the case of the applicant that any appointment on compassionate grounds has been made by the respondent after the application was made by the applicant. While the application of the applicant was pending with the respondent, the HUDCO Recruitment and Promotion Rules, 1994were replaced by HUDCO Recruitment and Promotion Rules, 2011 wherein there is no provision for appointment on compassionate grounds, and the HUDCO Social Security Scheme was introduced on 10.3.2010.
10. Clause 5 of the HUDCO Social Security Scheme reads as follows:
5. EFFECTIVE DATE The Scheme will come into force with immediate effect and will cover/be applicable to cases of death which have taken place in/after November, 2006. This Scheme is in lieu of Compassionate Appointment which ceased to exist in the year 2006. The above provision is clearly applicable to the case of the applicant; her husband having died on 9.11.2006. The respondents statement that since the date of the applicants letter requesting for providing her appointment on compassionate grounds, there has been no recruitment made by the respondent on compassionate grounds in any cadre, has not been controverted by the applicant.
11. The Honble Supreme Court in the case of State Bank of India and Anr. Vs. Raj Kumar, 2010 (11) SCC 661: 2010(3) SCALE 635, has held that the entitlement to compassionate appointment is not a matter of right and is not a substitute for a regular recruitment process. The Honble Apex Court has clarified that compassionate appointment can be granted only if there is a prevalent scheme for grant of compassionate employment, and not otherwise. The relevant paras of the judgment of the Honble Supreme Court in the case of State Bank of India (supra) are paras 6 to 8 which read as under:-
6. It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It. Follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant.
7. Normally, the three basic requirements to claim appointment under any scheme for compassionate appointment are: (i) an application by a dependent family member of the deceased employee; (ii) fulfillment of the eligibility criteria prescribed under the scheme, for compassionate appointment; and (iii) availability of posts, for making such appointment. If a scheme provides for automatic appointment to a specified family member, on the death of any employee, without any of the aforesaid requirements, it can be said that the scheme creates a right in favour of the family member for appointment on the date of death of the employee. In such an event the Scheme in force at the time of death would apply. On the other hand, if a scheme provides that on the death of an employee, a dependent family member is entitled to appointment merely on making of an application, whether any vacancy exists or not, and without the need to fulfill any eligibility criteria, then the scheme creates a right in favour of the applicant, on making the application and the Scheme that was in force at the time when the application for compassionate appointment was filed, will apply. But such schemes are rare and in fact, virtually nil.
8. Normal schemes contemplate compassionate appointment on an application by a dependent family member, subject to the applicant fulfilling the prescribed eligibility requirements, and subject to availability of a vacancy for making the appointment. Under many schemes, the applicant has only a right to be considered for appointment against a specified quota, even if he fulfils all the eligibility criteria; and the selection is made of the most deserving among the several competing applicants, to the limited quota of posts available. In all these schemes there is a need to verify the eligibility and antecedents of the applicant or the financial capacity of the family. There is also a need for the applicant to wait in a queue for a vacancy to arise, or for a Selection Committee to assess the comparative need of a large number of applicants so as to fill a limited number of earmarked vacancies. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, up to the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable. Further, where the earlier scheme is abolished and the new scheme which replaces it specifically provides that all pending applications will be considered only in terms of the new scheme, then the new scheme alone will apply. As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts. (underlining added) In view of the law laid down by the Honble Supreme Court in the above noted case, when the scheme for compassionate appointment is not in existence and has been replaced by another scheme in which there is no provision for compassionate appointment, the applicant is not entitled for appointment on compassionate grounds.
12. Coming to the question of entitlement of the benefit under the HUDCO Social Security Scheme, it is found that both the applicant and Mrs.Asha, mother-in-law of the applicant have laid claims before the respondent to pay them the benefit under the said Scheme. In view of the rival claims, the respondent has advised both Mrs.Asha and the applicant to furnish Succession Certificate in respect of the said benefit. As both of them have not yet filed the required Succession Certificate, the respondent has not been able to disburse the same. Therefore, at this stage, it is difficult to give direction to the respondent to make payment of the benefit under the said Scheme to the applicant alone. However, as and when, the required Succession Certificate is furnished, the respondent would take an appropriate decision in the matter.
13. The learned counsel for the applicant contended that at least interest should be allowed on the money to which she is entitled under the HUDCO Employees Social Security Scheme, dated 10.3.2010. As hereinbefore mentioned, the respondent is not retaining the benefit under the said Scheme on its own but due to want of Succession Certificate to be furnished by the successors of the deceased employee. Therefore, I am of the considered view that interest cannot be granted. However, it is directed that the respondent shall make payment of the benefit under the Scheme, dated 10.3.2010, within a period of two months from the date of submission of the required Succession Certificate, failing which the money payable under the said Scheme shall carry interest at 18% per annum from the date it became due till the date of actual payment.
14. With the aforesaid observation and direction, the Original Application is dismissed. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN