Central Administrative Tribunal - Chandigarh
Vijay Kumar Son Of Late Sh. Ram Kumar ... vs Union Of India Through Secretary on 17 November, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.NO.060/00798/2015 ORDERS PRONOUNCED ON: 17.11.2016 & M.A.No.060/00958/2015 (Orders reserved on: 20.10.2016) CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) Vijay Kumar son of Late Sh. Ram Kumar Sharma, New Abadi, Kumar Mandi, Survey No. 246A/42, Ferozepur Cantt (District Ferozepur), Punjab. By : Mr. Vijay Kumar for Mr. Surmukh Singh, Advocate. Applicant Versus 1. Union of India through Secretary, Department of Telecommunications, Sanchar Bhawan, New Delhi (Deleted by order dated 1.2.2016). 2. Bharat Sanchar Nigam Ltd., through its General Manager, Ferozepur. 3. General Manager, Telecom, Ferozepur-152001. By : Mr. Rajesh Gupta, Advocate. Respondents O R D E R
HONBLE MR. SANJEEV KAUSHIK , MEMBER (J)
1. The applicant has filed this O.A. inter-alia for issuance of a writ of mandamus directing the respondents to issue him appointment on compassionate grounds.
2. The facts, which lead to filing of this Original Application, are that Ram Kumar Sharma, father of the applicant, while working as T.M. in BSNL died on 14.1.2008 leaving behind widow Sunita Kumar, applicant and two daughters. As per the Sche3me dated 9.10.1998 issued by Government on compassionate grounds, the applicant was entitled to appointment as family had no source of income except salary of the deceased employee. The Circle Relaxation Considered case of the applicant but rejected it vide order dated 7.5.2013 (Annexure A-4) on the basis of guidelines dated 9.10.1998 and 27.6.2007. Annexure A-5 is check list which indicates that the family is in receipt of basic family pension of Rs.7530/- and has received total terminal benefits of Rs.7,86,500/-. Deceased had left only 9 years of service. The claim projected by the applicant is that the case could not be rejected by respondents by taking into consideration the retiral dues received by the applicant. Hence the O.A.
3. The respondents have filed a reply. They submit that the claim of applicant was rejected on the basis of relevant policy dated 9.10.1998 and weightage point system as per letter dated 27.6.207 in which applicant scored only 52 points as against 55 points necessary for being considered for appointment.
4. I have head learned counsel for the parties at length and examined the material on the file.
5. Learned counsel for the applicant vehemently argued that pension has been taken at Rs.7530/- on revised basis whereas it should have been taken at unrevised at Rs.3069 only. Further, he argued that merely on the basis of receipt of retiral dues, his case could not have been turned down. For this, reliance was placed on a decision of Honble High Court in the case of Bhupinder Batra Vs. Union of India etc. and Gobind Nath Vs. LIC, 2005 (10) SCT 289; Mukesh Kumar Vs. UOI, 2007 (4) SCT 312 and this Tribunal in S. Manoj Kumar Vs. UOI etc. 2004 (2) ATJ 437 and host of decisions of Honble Apex Court. This was resisted by learned counsel for the respondents.
6. The applicant has also filed an M.A. No. 060/00958/2015 seeking condonation of delay in filing the Original Application. The plea has been resisted by the respondents. Though I do not find any ground made out in the M.A. to condone the delay, yet as a matter of indulgence only, the delay in filing the O.A. is condoned and I proceed to consider the issue on merit.
7. On a consideration of the factual as well as legal scenario, I find that in this case of the applicant was considered on the basis of criteria laid down in the instructions of 2007 which talk about award of points for various parameters like dependents, family pension, left out service, applicants weightage (whether widow or others); terminal benefits, accommodation etc. The Court has been informed that one has to secure at least 55 points to be eligible for consideration of his or her case for appointment on compassionate grounds. This criteria has been adopted for all candidates who were in queue for such appointment. It is not that only applicant has been considered for appointment on the basis of such criteria. On the basis of points allotted to the applicant on various parameters laid down therein, the applicant has secured only 52 points only meaning thereby that the applicant has not been treated as in indigent condition. It was done by a Circle Relaxation Committee. Thus, the plea that the claim of the applicant has been rejected only on the point of receipt of retiral dues is not tenable and factually incorrect and that being the position, the various authorities relied upon by him do not help him at all. The retiral dues were taken as only one of the criteria of award of points in addition to other parameters. The number of candidates being much more than the number of vacancies, one could not find any fault in adopting weightage point system to select the most deserving person against limited vacancies on comparative basis.
8. In para 1 of the O.A. the applicant has made a reference to the impugned order dated 7.5.2013 but in para 8 of the same, quashing of the same has not prayed for by the applicant.
9. It is admitted fact that compassionate appointment cannot be claimed as matter of right. It is beneficial piece of legislation by which the government wants to help those families whose bread earner has died leaving behind the family in financial hardship. Keeping in view the family circumstances, after the death of the heads of the families, the government in its wisdom has introduced the scheme for appointment under the compassionate grounds. From time to time office memorandums were issued by the Nodal Ministry (DoPT) in which criteria has been laid down on the basis of which the case has to be considered. In the year 1998, the Government of India issued OM in furtherance of various judgments of the Honble Supreme Court in that behalf and guidelines too were issued in 2007 considering that the number of candidates was much more than the vacancies.
10. It is also now well settled that 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 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. There are number of judgments on this issue i.e. Umesh Kumar Nagpal Vs. State of Haryana, (1994) 4 SCC 13, Jagdish Prasad versus State of Bihar, (1996) 1SCC 38, Steel Authority of India ltd. Vs. Madhusudan Das and Ors. (2008 (15) scale 39 and National Hydro Electric Power Corporation Vs. Nanak Chand 2004(12) SCC 487, State of J&K and others Vs. Sajad Ahmed Mir (2006 (5) SCC 766.
11. In the case of Bhawani Prasad Sonkar versus Union of India and others reported in (2011) 4 SCC 209, it has been held as under :-
"15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.
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19. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:
(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.
(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.
(iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased / incapacitated employee's family at the time of his death or incapacity, as the case may be.
(iv) Compassionate employment is permissible only to one of the dependants of the deceased / incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV Posts."
12. Hon'ble Apex Court in the case reported in The Chief Commissioner, Central Excise and Customs, Lucknow & Ors v. Prabhat Singh, JT 2013 (1) SC 350, has held as under :-
"14. We are constrained to record that even compassionate appointments are regulated by norms. Where such norms have been laid down, the same have to be strictly followed. Where claims for appointment on compassionate ground, exceed, the available vacancies (which can be filled up by way of compassionate appointment), a selection process has to be adopted by the competent authority. The said process necessarily has to be fair, and based on a comparative compassion gradient of eligible candidates, or on some such like criterion having a nexus to the object sought to be achieved. In other words, where there are two candidates but only one vacancy is available, there should be a clear, transparent and objective criterion to determine which of the two should be chosen. In the absence of a prescribed criteria, a fair selection process has to be followed, so that, the exercise carried out in choosing one of the two candidates against a solitary available vacancy, can be shown to be based on reason, fair-play and non arbitrariness.
15. The very object of making provision for appointment on compassionate ground is to provide succor to a family dependent on a government employee, who has unfortunately died in harness. On such death, the family suddenly finds itself in dire straits, on account of the absence of its sole bread winner. Delay in seeking such a claim, is an ante thesis, for the purpose for which compassionate appointment was conceived. Delay in raising such a claim, is contradictory to the object sought to be achieved. The instant controversy reveals that even though Vijay Bahadur Singh, the father of the applicant (Prabhat Singh) seeking appointment on compassionate ground had died on 2.3.1996, Prabhat Singh sought judicial redress, for the first time, by approaching the CAT-Allahabad Bench in 2005. By such time, there was no surviving right for appointment on compassionate ground under the OM dated 5.5.2003. As already noticed above, appointment on compassionate ground under the OM dated 5.5.2003 is permissible within three years of the death of the bread winner in harness. By now, sixteen years have passed by, and as such, there can be no surviving claim for compassionate appointment.
16. Courts and Tribunals should not fall prey to any sympathy syndrome, so as to issue directions for compassionate appointments, without reference to the prescribed norms. Courts are not supposed to carry Santa Claus's big bag on Christmas eve, to disburse the gift of compassionate appointment, to all those who seek a court's intervention. Courts and Tribunals must understand, that every such act of sympathy, compassion and discretion, wherein directions are issued for appointment on compassionate ground, could deprive a really needy family requiring financial support, and thereby, push into penury a truly indigent, destitute and impoverish family. Discretion is therefore ruled out. So are misplaced sympathy and compassion."
13. It is clear from the legal position discussed above that the apex court of the country has given a note of caution to the courts and tribunals that it should not fall prey to any sympathy syndrome so as to issue directions for compassionate appointments without reference to the prescribed norms. In the language of the Hon'ble Supreme Court of India, the courts are not supposed to carry Santa Claus's big bag on Christmas eve, to disburse the gift of compassionate appointment, to all those who seek a court intervention. A note of caution has also been given that such acts of sympathy, compassion and discretion, could deprive a really needy family requiring financial support and thereby push into penury a truly indigent, destitute and impoverish family. Discretion is therefore ruled out. So are, misplaced sympathy and compassion.
14. In view of the factual and legal position discussed above, this Original Application turns out to be devoid of any merit and is dismissed.
15. The parties are left to bear their costs.
(SANJEEV KAUSHIK) MEMBER (J) Place: Chandigarh Dated: 17.11.2016 HC* 1 (O.A.NO.060/00798/2015 Vijay Kumar Vs. UOI etc.)