Central Administrative Tribunal - Kolkata
Ranjit Kumar Prasad vs O F B on 22 February, 2022
ot . , 0.A.1177/2018 -
CENTRAL ADMINISTRATIVE TRIBUNAL | KOLKATA BENCH, KOLKATA ale mn i -
(Through Audio/V ideo Conferencing) 3 % Sgt UY
0.A/350/01177/2018 Date of Order: 22.02.2022 ~ Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member In the matter of :
Sri Ranjit Kumar Prasad, Son of Late Ram Chandra Prasad, residing at Indrapuri, Ichapur, Post Office : Ichapur Nawabgang, District North 24 Parganas, Pin code :
743144. | | senna Applicant
-Versus-
1. Union of India, service through the Secretary, Ministry of Defence, Department of Defence, Production and supply, Government of India, South Block, New | ~ Delhi, Pin-110001.,
2. The Chairman, Ordinance Factory.
'Board, 10A, Sahid Khudiram Bose Road, Kolkata-700001. =
3.. The General Manager, Metal & Steel Factory, Post Office. : Ichapur Nawabgang, District North 24 Parganas, Pin Code :
743144. | | 2 * O.A. 1177/2018
4. The Works Manager, Administration -
-- |, Metal & Steel Factory, Post Office :
'. Ichapur Nawabgang, District North 24 Parganas, Pin Code : 743144,
5. The Junior General' Manager/Administration and HR Metal & Steel Factory, Post Office : Ichapur _ Nawabgang, District North 24 Parganas, Pin Code : 743144.
denen Respondents -
For The Applicant(s): My. N. Roy, Counsel For The Respondent(s): Mr. 8. Paul, Counsel ORDERORAL Per: Hon'ble Dr. (Ms.} Nandita Chatterjee, Administrative Member Aggrieved with non-receipt of offer for compassionate appointment, the applicant. has approached this Tribunal praying for the following relief :-
"a) An order directing the respondents, each one of them their men, agents, staffs, subordinate and associates to rescind + and/or withdraw the office memo dated 11/11/2017 annexure' A-8 and to provide appointment on compassionate ground to the applicant. ,
b) An order directing the respondents, each of them their men, agents, staffs, subordinate and associates to certify and transmit to this Hon'ble Tribunal relevant documents pertaining to the present case so that _conscionable justice may be administered by directing them to forthwith.
c} Costs of and/or incidental to this application be borne by the respondents.
be 3 O.A. 1177/2018
d) Such further and/or other order or orders be passed and/or deem fit and proper".
2. Heard Learned Counsel for both the parties who are satisfied with the quality | of audio/video during hearing. Examined pleadings and documents on record.
3. The facts, as deciphered from the pleadings is that the applicant's father, who was an ex-employee with the respondent authority, had passed away on 03.07.2000 while in service, and, that, he left behind a dependent family of his widow, the applicant/son of the deceased employee and 4 (four) married : daughters ( annexed at Annexure-R/1 to the rejoinder).
The applicant, thereafter, prayed for compassionate appointment on> 22.10.2001 only to be rejected on the grounds that he was overaged and such regret was conveyed to the applicant by the respondent authorities on 06.11.2001 (annexed at Annexure-A/2 to the OA).
In '2016, the applicant represented to the' authorities (annexed at Annexure-R/5 to the Reply) referring to certain incumbents as enlisted in orders dated 27.05.2002 (annexed at Annexure-A/3 to the OA), in which, purportedly, -
the said appointees, despite being overaged, were offered with compassionate appointment against existing vacancies by the office of respondent no. 3.The authorities, however, were quick to deny such allegation in their response dated 15.03.2016, and informed him on 13.04.2016 (annexed at Annexure-A/4 to the OA) in response to his RT! query, that no such individuals as named by him at SI. No. 1 to 5, namely, A. K. Das, Manoj Paswan, Ashok Das, Smt. S. Sarkar and Sumanta Debnath had ever been appointed by the respondent authorities on compassionate grounds in the Metal & Steel Factory, Ishapore.
wh direction or directions be given, as to this Hon'bie Tribunal may 4 , O.A. 1177/2018 Although the applicant had an opportunity to prefer an appeal under Section 19 (1) of the RTI Act, 2005, nothing has been brought on record to establish that any such appeal as preferred by the applicant to obtain further information in this regard.
That, thereafter, the applicant again applied on 03.03.2016 praying for ~ compassionate appointment, in response to which, the respondent authorities, vide their communication dated 11.11.2017 (annexed at Annexure-A/7 to the OA), regretted their inability to consider his prayer as he had obtained a score of \ 32 points ona 100 points scale as against the benchmark of 54. Challenging such " rejection, the applicant has approached this Tribunal praying for the instant relief.
4. The primary grounds on which the applicant would support his claims are as follows :-
- (i) That, the policy decision of the authorities 'dated 23.01.2017 (annexed at Annexure-R/2 to the Reply) is not applicable in the case of the applicant, as the ex-employee had expired in 2000.
(ii) That, the authorities had rejected his candidature on 06.11.2001 only on .
grounds of overage. Hence application of any subsequent policy statement to reject his candidature on the basis of weightage scores is arbitrary and inapplicable to the applicant concerned.
(iii) That, as the deceased employee was the sole earning member of the family, his sudden demise had subjected the family to acute penury especially in the absence of alternative income and immovable property to sustain their itvelihood.
WL
5. 5. | O.A. 1177/2018
(iv) That, the applicant's candidature was rejected on grounds of overage, namely that he was 34 years 8 months and 12 days old whereas the maximum age of appointment was limited to 30 years plus 2 years on relaxation. The respondent authorities, however, had discriminated against him by appointing other candidates as enlisted at Annexure-A/3 to the OA, who were also overaged during the time of their appointment on compassionate grounds.
Per contra, the respondent authorities would repel the claim of the applicant on following grounds :-
(i) That, although the first regret letter was issued on 06.11.2001 rejecting the candidature of the applicant on grounds of overage, the applicant should have | challenged such rejection within the period of limitation as provided by the Administrative Tribunals Act, 1985, but, as the applicant waited for more than 16 years to file the instant application, the present application, in as much as it challenges the regret letter of 06.11.2001 on the grounds of being arbitrary and discriminatory to the applicant vis-a-vis appointments being granted to similarly circumstanced candidates, is severely barred by limitation.
The respondents would also rely on judgements/orders in the cases of Ratan Samanta vs. UOI, 1993 (suppl) (4) SCC; Secretary to Govt. of India & Ors. vs. Shivram Mahadu Gaikwad, 1995 Supp. (3) SCC 231, and $.5. Rathore vs. State of Madhya Pradesh, AIR 1990 SC 11-1990(1) to drive home the point that aspirants cannot claim vested right while delaying their claim for compassionate appointment.
(ii) That, after expiry of more than 14 years since the first rejection on ground of over-age, the applicant represented on 03.03.2016 with a request to re-
ha -;) O.A. 1177/2018 consider his prayer for compassionate appointment. During the pendency of the process of applicant's submission of the complete set of requisite documents including his educational certificate, the respondent authorities had issued their policy' decision dated 07.10.2016 and 23.01.2017 (annexed at . Annexure-R/1 & R/2 to the Reply) respectively, calling for specifics such as , details of immovable properties including land holdings in form of an affidavit, a certificate from the Civil Authority regarding total property holdings, certificate on proof of date of birth, educational qualification as well as No- Objection Certificate from other family members of the candidate concerned. The applicant ultimately furnished the said documents vide his letter dated 01.03.2017 . An enquiry was made to verify the status of the family of the deceased government employee and, the office of the District Magistrate of the concerned district was requested for verification of the status of legal heirs
- as well as the financial condition of the family of the deceased employee. 1 .
The applicant's prayer was thereafter alaced before the duly constituted Board of Officers for recruitment years 2015-16 and 2016-17 along with other candidates aspiring for compassionate appointment, and, after having:
considered the parameters on the basis of the prevalent weightage system as per Ministry of Defence vide their ID No. 19(4)/824-99/1998-D(Lab) dated 09.03.2001, and, based on DoPT O.M. dated 09.10.1998, the applicant was awarded 32 points on 100 point scale by the committee concerned which, however, was far below the benchmark of 54 and other deserving candidates with higher score was accommodated against the quota of 5% vacancies. The applicant was informed accordingly on 11.11.2017 {as per Annexure-A/7 to the OA) : he _--
6. 7 0.A, 1177/2018 That, the applicant's case was once. again placed before the said Board of Officers for recruitment year 2017-18 wherein he was awarded 37 points on 100 point scale against the benchmark of 58 points. The candidate was informed of such decision vide speaking order dated 16.08.2019 (annexed at Annexure-R/3 collectively).
The applicant's case was once again considered for the recruitment year 2018-19 wherein he scored 37 points on a-100 points scale against the benchmark of 57 points.
(iii) That the rejection dated 11.11.2017 (annexed at Annexure-A/7 to the OA) was not in response to his application dated 22.10.2001, but, in the context of his representation dated 03.03.2016 in which he had requested the respondent authorities to reconsider his prayer for compassionate appointment and therefore, the respondents would argue that the applicant, having failed repeatedly to obtain the benchmark score, 'cannot claim | compassionate appointment as a matter of vested right as. there were far more deserving candidates who, being on the brink of penury, had to be accommodated against the limited number of vacanciés set forth for the purpose of compassionate appointment as per the ratio contained in Umesh "
Kumar Nagpal vs. State of Haryana & Ors. [JT 1994 (3} SC 525].
We have considered the rival contentions of Learned Counsel, examined.
documents on record. The applicant is aggrieved primarily on two grounds :-
(a) That, while his prayer for compassionate appointment was rejected on grounds of overage in 2001, other similarly circumstanced who were also overaged were granted with compassionate appointment in the year 2002 and veh a ' 8 O.A. 1177/2018 ' would bring | forth Annexure- A/3 to support his claim in this context. A close examination of Annexure-A/3 to the OA reveals that the dates of appointments of the candidates concerned predates the date of the purported -
order of the respondent authorities. This, itself, calls the entire document in question as because offers of appointment are usually made after extending provisional offer letters to the candidates concerned, and provisional appointment 'letters are issued consequent to issue of such offer letters. Hence, the fact that the 'authorities had issued provisional appointment orders with retrospective effect vide their order dated 27.05.2002, does not | satisfactorily establish the authenticity of such an office order. Secondly, the tast clause of such order, namely, that the candidates have to opt for medical reimbursement within '2 months from the date of appointment, does not appear to be a conventional clause of a provisional appointment letter.
"Accordingly it is difficult to accept the genuineness of the appointment orders at Annexure-A/3 to the OA.
Further, in reply toa RTI application of the applicant, the Public Information Officer of the respondent organization have categorically stated that the incumbents named in Annexure-A/3 to the OA had never been appointed on compassionate ground in Metal & Steel Factory, Ishapore. There is nothing on record to demonstrate that the applicant had preferred an appeal against such information. Hence, the applicant's allegation that similarly circumstanced candidates, despite being overaged have been offered appointment on compassionate ground, has not been successfully established in this original .
apolication.
Poe ae erent afte Mencia ete Tne ee ee, ne eco 9 O.A. 1177/2018 ~ (b) The second claim of the applicant is, that, the applicant's father had passed away in 2000, and, hence, the policy decision of the 2017 has no application to the applicant. ' The respondents, however, had decided his prayer on. the basis of parameters that lays down the weightage system which is to be considered by the duly constituted Board. Such weightage system was introduced. by the respondent Ministry vide their ID dated 09.03.2001 based on DoPT OM dated 09.10.1998 which had governed the field when the ex-employee had passed away while in-service.
Herein, we would refer to the judgment and order in N.C. Santhosh vs. State of Karnataka, (2020) 7 SCC 617 for guidance in this regard. The' Hon'ble Apex .Court had held therein as under :-
"13. It is well settled that for all the government vacancies equal opportunities should be provided to all aspirants as is mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. In SAIL v. Madhusudan Das it was remarked accordingly that compassionate appointment is a concession and not a right and the criteria laid down'in the Rules must be satisfied by all aspirants.
14. This Court in SBI v, Raj Kumar while reiterating that no aspirant has a vested right to claim compassionate appointment, declared that the norms that are in force, 'when the application is actually considered, will be applicable. The employer's right to modify the scheme depending on its policies was recognized in this judgment. Similarly, in MGB Gramin Bank v. Chakrawarti Singh this Court reiterated that compassionate ". appointment has to be considered in accordance with the prevalent scheme and no aspirant can claim that his case should be considered as per the scheme existing on the date of death of the government employee.
15. However, in Canara Bank v. M. Mahesh Kumar in the context of major shift in policy, whereunder, instead of compassionate appointment (envisaged by the Scheme dated 8.5.1993) ex gratia payment was proposed (under the Circular dated 14.2.2005), the Court adopted a different approach. Noticing the extinguishment of the right to claim appointment, this Court held the "dying in harness scheme" which was prevalent on the death of the employee, be the basis for consideration.
16. Atwo-Judge Bench headed by Uday U. Lalit, J noticed the Supreme Court's view in SBI v. Raj Kumar and MGB Gramin Bank v. Chakrawarti Singh on one side and the 'contrary view in Canara Bank v. M. Mahesh Kumar and felt the necessity of resolution of the conflicting question on whether the norm applicable on the date of death or on the date of consideration of application should apply. Accordingly, in SBI v. Sheo a ! ~ 10 , O.A. 1177/2018 Shankar Tewari the Court referred the matter for consideration by a larger Bench so that the conflicting views could be reconciled. ,
17. The above discussion suggest that the view taken in Canara Bank v. M. Mahesh Kumar is to be reconciled with the contrary view of the coordinate Bench, in the two earlier judgments. Therefore, notwithstanding the strong reliance placed by the appellant's counsel on Canara Bank'v. M. Mahesh Kumar as also the opinion of the learned Single Judge of the Karnataka High Court in Uday Krishna Naik v. State of Karnataka, it cannot be said that the appellant's claim should be considered under the unamended provisions of the Rules prevailing on the date of death of the government, , employee.
18. In the most recent judgment in State of H.P. v. Shashi Kumar the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the Bench, Dr. D.Y. Chandrachud, J. reiterated that appointment " to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The dependents of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the State's policy.
19. Applying the law governing compassionate appointment culled out from the above cited judgements, our opinion on the point at issue is that the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government | employee, can only demand consideration of his/her application. He is, however, . disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee.
20. In view of the forgoing opinion, we endorse the Tribunal's view as affirmed by the High Court of Karnataka to the effect that the appellants were ineligible for compassionate appointment when their applications were considered and the unamended provisions of Rule 5 of the Rules will not apply to them. Since no infirmity is found in the impugned judgments N.C. Santhosh v. State of Karnataka, Sayeda Farheen Banao v. State of Karnataka and Santosh v. Revenue Deptt. the appeals are found devoid of merit and the same are dismissed."
if t We respectfully note, therefore, that a three judge bench of the Hon'ble Apex Court in N.C. Santhosh (supra) has discussed the ratio in M. Mahesh Kumar (supra) as well as the contrary judgements in Raj Kumar (supra), .Chakrawarti Singh (supra), and, in Shashi Kumar (supra) to conclude that the norms that prevailed on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment, and, that, in the absence of any, vested right accruing on the dependent applicant on the death of the government employee, such aspirants can only demand consideration of their ~ applications. - hak | mo 0.A, 1177/2018 The fact that respondent authorities had considered the prayer of the . applicant in the light of the 1998 Scheme of DoPT, read with their 2017 policy, {-° cannot be faulted with, in the light of Hon' ble Apex Court's decision in N.C. Santhosh (supra), and we do not consider the decision of the authorities to be a | fit case for intervention.
7. - Accordingly, the applicant having applied for reconsideration of his prayer in 2016, it is only appropriate that the authorities have taken up his prayers for the recruitment years 2015-16, 2016-17, 2017-18 and 2018-19 on the basis of the "policy decision that prevailed at the material point of time, that is in 2016 and in ) 2017 "respectively. Hence, the decision of the authorities dated 11.11.2017 (annexed at Annexure-A/7 to the OA), 16.08.2019 (annexed at Annexure-R/3 to the Reply) and 31.07.2021 (annexed at Annexure-R/4 to the Reply), in which they have rejected his claim based on his low score compared to the benchmark score for grant of compassionate appointment in each recruitment year do not call for judicial intervention.
8. At the same time, however, it would transpire that the applicant has once again.-applied in response to respondents' communication dated 26.12.2020 (annexed at Annexure-R/1 to the Rejoinder), | oraying for compassionate appointment.and, that, he has furnished the requisite documents in response thereof.
We would hence direct the respondent authorities to consider his claim in the light of the extant policy decisions and the judicial ratio as contained in N.C. Santhosh (supra), and convey their decision to the applicant in form of a reasoned order.
12 0.A. 1177/20189. Tosum up, in our considered opinion,
(i) The allegation of appointment of over aged candidates while rejecting the applicant as over aged in 2001, has not been established to the satisfaction of 'this Tribunal.
(ii) The reasoned orders of the authorities dated 11.11.2017, 16.08.2019 and
- 31.07.2021, which are based on schemes/policy decisions of the authorities, | do not call for any intervention in terms of the ratio in N.C. Santhosh (supra). . and,
(iii) The authorities are to consider the applicant's prayer in response to their communication dated 26.12.2020 in accordance with extant policy/scheme, and, in accordance with law, so as to convey their decision in the form of a reasoned order to the applicant.
10. With these directions, the instant'O.A. is disposed of.
No costs.
(Dr. Nandita Chatterjee) © (Bidisha Banerjee) Administrative Member Judicial Member sl