Central Administrative Tribunal - Lucknow
Punita Bhatt vs Bharat Sanchar Nigam Limited on 13 January, 2023
CAT, Lucknow Bench O.A. No. 123/2017 - Punita Bhatt Vs. U.O.I & Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
OA No. 332/00 123/2017
Order reserved on : 04.11.2022
Pronounced on: 13.01.2023
CORAM
HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A)
Punita Bhatt, aged about 44 years, Daughter of Late Om
Prakash Bhakta, resident of 435, Kanpur Road, Near New Public
Inter College, Sector D-I LDA Colony, Lucknow.
By Advocate : Shri Ajai Vikram Singh
Versus
1. Bharat Sanchar Nigam Limited (BSNL), Corporate Office at
102-B, Statesman House, New Delhi through its Chairman-cum-
Managing Director.
2. Assistant General Manager (Recruitment) Bharat Sanchar
Nigam Limited, Office of the General Manager, Telecom (East), U.P
Circle, Lucknow.
3. Assistant General Manager (HR), Office of the General
Manager, Telecom Allahabad.
4. Circle High Power Committee (for considering the case of
compassionate appointment )Bharat Sanchar Nigham Limited,
Circle Office Hazratganj, Lucknow.
......Respondents.
By Advocate: Shri G. S. Sikarwar
ORDER
Per HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A) The present Original Application (O.A.) concerns claim of applicant for compassionate appointment.
2. The claim of the applicant for Compassionate appointment is based on the following reasoning:
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CAT, Lucknow Bench O.A. No. 123/2017 - Punita Bhatt Vs. U.O.I & Ors.
(i) that even after marriage, the applicant has not lost the status of a 'daughter' of her father / parents;
(ii) after her being widowed, she becomes dependent on her parents family for subsistence
(iii) therefore, even if the name of the applicant is not in the 'kutumb register' of the 'Family' of her father on account of her marriage, she is still entitled for benefits of her deceased father as her status as 'daughter' of her father does not get extinguished due to her marriage coupled with the fact that she is now widowed and so dependent on her parents for subsistence.
2.1 The applicant has placed reliance on the judgement of the Hon High Court in WP (Special Appeal) No.1026 of 2003 concerning definition of 'family' in the context of daughter/daughter-in-law. It is therefore asserted that she is entitled to benefit of compassionate appointment which has been refused on the ground that a married daughter / widowed daughter / widowed daughter-in-law is not included in the list of persons eligible for compassionate appointment. Hence this O.A.
3. The respondents have denied the relief claim on the grounds that the married daughter/widowed daughter is not stated in the list of eligible persons in the guidelines for compassionate appointment. That the Tribunal cannot simply add a category of eligible person in the guidelines on its own as it would then step into the role of the Executive which is not permissible per the tenets Page 2 of 10 CAT, Lucknow Bench O.A. No. 123/2017 - Punita Bhatt Vs. U.O.I & Ors. of service jurisprudence. That being the case, the applicant's assertion has no merits and the OA is liable to be dismissed.
4. Heard learned counsels for the parties and perused all the pleadings filed carefully.
5. Arguments were heard at length. On an earlier date, the ld applicant counsel had argued that the respondents have issued a circular following the judgement of the Hon High Court in (Special Appeal) No.1026 of 2003 which would clarify the claim of the applicant. This Tribunal accordingly, vide order dated 22.07.2022, directed as under:
―On query from the ld. counsel for the applicant that whether the department has issued any order in compliance of the order of Hon'ble High Court, to which, ld. Counsel for the applicant seeks some time to examine and file the document if any.‖
6. Today, the learned counsel for the applicant is submitting that he is not able to produce the order which has been passed by the respondents qua the Hon'ble High Court in the WP (Special Appeal) No.1026 of 2003 and so the Tribunal may decide the case on the basis of documents filed and the rationale thereof.
7. The learned counsel for the respondents drawing attention of the Tribunal to para-6 of their CA, submits that as the category of a widowed daughter is not listed in the eligibility criteria of the guidelines circulated vide O.M. 09/10/1998, therefore, applicant cannot be considered for Compassionate appointment. This brings us to the order of the Hon High Court Allahabad, Lucknow Bench first. Relevant portions read as under:
―A.F.R. Chief Justice's Court Case :- SPECIAL APPEAL No. - 1026 of 2003 Page 3 of 10 CAT, Lucknow Bench O.A. No. 123/2017 - Punita Bhatt Vs. U.O.I & Ors.
Petitioner :- U.P. Power Corporation Ltd.
Respondent :- Smt. Urmila Devi Petitioner Counsel :- Navin Sinha, Sr. Advocate, Nripendra Mishra, R.P. Srivastava, Pankaj Kumar Shukla, H.P. Dubey, C.S.C. Respondent Counsel :- Ashok Pandey Hon'ble Ferdino Inacio Rebello, Chief Justice Hon'ble Vineet Saran,J.
Hon'ble Vikram Nath,J.
A petition, being Civil Misc. Writ Petition No. 20938 of 2002, was filed by Smt. Urmila Devi, respondent herein, daughter-in-law of the deceased Kishun Lal, who died in harness on 21.04.1999. Kishun Lal, at the time of his death, was employed as Painter in the Electricity Transmission Division II of the U.P. Power Corporation, Allahabad. Anil Kumar, husband of the respondent predeceased his father. Late Kishun Lal was survived by the respondent herein and two children, i.e. one son and one daughter. After the death of Kishun Lal, his daughter-in-law Urmila Devi, respondent herein, applied for compassionate appointment, which was declined by order dated 22.04.2002 on the premise that she did not fall within the definition of ‗family' as given under the U.P. State Electricity Board Dying in Harness Rules, 1975 (hereinafter referred to as the 'Rules'). That order was the subject matter of consideration before the learned Single Judge in the writ petition. The learned Single Judge, after considering the definition of ‗family' and various judgments, was pleased to allow the petition by order dated 09.09.2003 holding that a widowed daughter-in-law would fall within the definition of family. This is the order which had been challenged in the special appeal.
At the time of hearing of the appeal, various judgments were cited on behalf of the learned counsel for the appellant - Power Corporation before the learned Appellate Bench for the proposition that where a discretion to grant compassionate appointment is vested in a particular office holder, the writ Court can, at best, direct the consideration of the case of an otherwise entitled dependant, but it cannot, by itself, direct the appointment to be made by issuing a writ of mandamus.
On behalf of the writ petitioner-respondent, reliance was placed on a Division Bench decision of this Court in State of U.P. & Ors. Vs. Rajendra Kumar, [2000 (1) AWC 155], where the Rule considered was of appointment on compassionate basis in the State Government. The learned Appellate Bench, then, considered the meaning of the expression 'family shall include' and thereafter was pleased to observe as under:-Page 4 of 10
CAT, Lucknow Bench O.A. No. 123/2017 - Punita Bhatt Vs. U.O.I & Ors.
―In a similar way, in the present context, it is our opinion that the word ‗include', although usually prefixing an illustrative category, here prefixes an exclusive one. As such, the matter is referred to the Hon'ble Chief Justice for constitution of a larger Bench; until the said decision the order under appeal will have to remain stayed as contempt application is pending. Stay order passed accordingly.‖ We find, however, that the learned Bench has really not framed the question for consideration by this Bench. From the observations made, however, it appears that the learned Appellate Bench did not agree with the view taken in the case of Rajendra Kumar (supra). In that light of the matter, the question for our consideration would be:-
―Whether the definition of ‗family' under the Rules would include a daughter-in-law?
There is no dispute that the definition of family under the Rules, does not include a daughter-in-law though it includes a widowed daughter. We may mention that, at the preliminary hearing, our attention was invited to a Division Bench judgment of this Court in the case of Basic Shiksha Adhikari, Hardoi Vs. Madhu Mishra & Ors., [2009 (27) LCD 995], where the question for consideration was ‗whether a widowed daughterin-law can claim appointment under the Dying in Harness Rules? The learned Bench, after considering the definition of the word ‗family', was pleased to hold that the decisions in Smt. Urmila Devi Vs. U.P. Power Corporation & Ors., 2003 (4) AWC 3205, & Sanyogita Rai (Smt.) Vs. State of Uttar Pradesh & Ors., (2006) 2 UPLBEC 1972, are not in conformity with the well settled principles of law and they are, accordingly, overruled. In other words, the judgment in Urmila Devi (supra) no longer subsists. It is, therefore, clear that the reference as such, would not be maintainable.
However, during the pendency of these proceedings, considering the peculiar features of the case, the appellant themselves, on queries raised by the Court, have taken a decision to give appointment to the respondent on producing the documents as set out in the affidavit filed on behalf of the appellants. They have also made it clear that the age bar would not come in the way while giving appointment to the respondent. In the light of that, in our opinion, really, nothing further would survive in this reference. However, liberty to the respondent, in the event appointment is not given, to apply.
We must, however, note one feature of the definition of the word ‗family' as generally contained in most Rules. The definition of ‗family' includes wife or husband; sons; unmarried and widowed daughters; and if the deceased was an unmarried government servant, the brother, unmarried Page 5 of 10 CAT, Lucknow Bench O.A. No. 123/2017 - Punita Bhatt Vs. U.O.I & Ors.
sister and widowed mother dependant on the deceased government servant. It is, therefore, clear that a widowed daughter in the house of her parents is entitled for consideration on compassionate appointment. However, a widowed daughter-in-law in the house where she is married, is not entitled for compassionate appointment as she is not included in the definition of ‗family'. It is not possible to understand how a widowed daughter in her father's house has a better right to claim appointment on compassionate basis than a widowed daughter-in-law in her father-in- law's house. The very nature of compassionate appointment is the financial need or necessity of the family. The daughter-in-law on the death of her husband does not cease to be a part of the family. The concept that such daughter-in-law must go back and stay with her parents is abhorrent to our civilized society. Such daughter-in-law must, therefore, have also right to be considered for compassionate appointment as she is part of the family where she is married and if staying with her husband's family. In this context, in our opinion, arbitrariness, as presently existing, can be avoided by including the daughter-in-law in the definition of 'family'. Otherwise, the definition to that extent, prima facie, would be irrational and arbitrary. The State, therefore, to consider this aspect and take appropriate steps so that a widowed daughter-in-law like a widowed daughter, is also entitled for consideration by way of compassionate appointment, if other criteria is satisfied.
Learned Chief Standing Counsel to forward a copy of this order to the Secretary of the concerned Department in the State Government for appropriate consideration.
With the above observations, the reference is disposed of.
At this stage, parties agree that as the judgment in Urmila Devi (supra) has since been held to be no longer a good law, the appeal itself can be treated to be disposed of.
Accordingly, the appeal stands disposed of.
(F.I.Rebello, C.J.) (Vineet Saran, J.) (Vikram Nath, J.)‖ The Compassionate Appointment guidelines per Annexure filed by the respondents read as under:Page 6 of 10
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―No.14014/6/94-Estt(D) Government of India Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training) New Delhi 110001 October 9, 1998 OFFICE MEMORANDUM Subject: Scheme for compassionate appointment under the Central Government - Revised consolidated instructions -
The undersigned is directed to say that the existing instructions for making compassionate appointment under the Central Government have since been reviewed in the light of the various court judgements and other decisions including those taken on the various recommendations contained in the Fifth Central Pay Commission Report as well as the Study Reports of 1990 and 1994 prepared by the Department of Administrative Reforms and Public Grievances on the subject and they have accordingly been revised/simplified and consolidated as in the enclosed scheme which will supercede all the existing instructions on the subject. This may be brought to the notice of all concerned for information, guidance and necessary action.
(K.K. JHA) Director(Establishment) To All Ministries/Departments of the Government of India ******* SCHEME FOR COMPASSIONATE APPOINTMENT 1- OBJECT The object of the Scheme is to grant appointment on compassionate grounds to a dependent family member of a Government servant dying in harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood, to relieve the family of the Government servant concerned from financial destitution and to help it get over the emergency,
2. TO WHOM APPLICABLE To a dependent family member --
(A) of a Government servant who
(a) dies while in service (including death by suicide); or
(b) is retired on medical grounds under Rule 2 of the CCS (Medical Examination) Rules 1957 or the corresponding provision in the Central Civil Service Regulations before attaining the age of 55 years (57 years for Group 'D' Government servants); or
(c) is retired on medical grounds under Rule 38 of the CCS(Pension) Rules, 1972 or the corresponding provision in the Central Civil Service Regulations before attaining the age of 55 years (57 years for Group 'D' Government servants); or (B) of a member of the Armed Forces who -
(a) dies during service; or
(b) is killed in action; or Page 7 of 10 CAT, Lucknow Bench O.A. No. 123/2017 - Punita Bhatt Vs. U.O.I & Ors.
(c) is medically boarded out and is unfit for civil employment. Note I "Dependent Family Member" means:
(a) spouse; or
(b) son (including adopted son); or
(c) daughter (including adopted daughter); or
(d) brother or sister in the case of unmarried Government servant or member of the Armed Forces referred to in (A) or (B) of this para.
who was wholly dependent on the Government servant/ member of the Armed Forces at the time of his death in harness or retirement on medical grounds, as the case may be.
8. The respondents have further drawn the attention of the Tribunal to para-6 of the CA. The same is also extracted for ready reference hereunder:
― That in reply to the contents of para 4.6 of the original application, it is submitted that the applicant is not legally entitled to get appointment on compassionate ground in view of office memorandum No. 14014/6/94- estt. Dated 9.10.1998 Note 1 dependent Family definition-Scheme for compassionate appointment under the Central Government issued by DOPT in which widow daughter of deceased Government servant is not included as dependent family member of Government servant. The copy of scheme for compassionate appointment under the Central Government Servant dated 9.10.1998 is being annexed herewith as Annexure No. R-1 to this counter reply.‖ Clearly, the guidelines do not mention the widowed daughter as an entitled category for grant of Compassionate appointment. We may now read the order of the Hon High Court carefully in the following portion:
―We must, however, note one feature of the definition of the word ‗family' as generally contained in most Rules. The definition of ‗family' includes wife or husband; sons; unmarried and widowed daughters;. It is, therefore, clear that a widowed daughter in the house of her parents is entitled for consideration on compassionate appointment. In this context, in our opinion, arbitrariness, as presently existing, can be avoided by including the daughter-in-law in the definition of 'family'. Otherwise, the definition to that extent, prima facie, would be irrational and arbitrary. The State, therefore, to consider this aspect and take appropriate steps so that a widowed daughter-in-law like a widowed daughter, is also entitled for consideration by way of compassionate appointment, if other criteria is satisfied.‖
9. Evidently, the Hon High Court has referred to in passing that one feature of the Rules in general is notable - viz - the Page 8 of 10 CAT, Lucknow Bench O.A. No. 123/2017 - Punita Bhatt Vs. U.O.I & Ors. definition of the word 'family' as generally contained in most Rules includes wife or husband; sons; unmarried and widowed daughters..". There is no clear finding of the status of a widowed daughter as an eligible person for compassionate appointment. The sentence is at best, in the judgment an ‗obiter dicta' and not a clear finding. In fact once we read further in the judgement it is clear that it does hold that a widowed daughter-in- law does not loose status of a daughter in her parents' family just because she was sent away as per archaic traditions from her parents' house to her in-laws house where her husband lived. The point is that the Hon High Court has firstly presumed that - a 'widowed daughter' is an eligible person for compassionate appointment in most rules which is not the case in the BSNL guidelines filed by the respondents and secondly, that since a 'widowed daughter' is an eligible person in her parents' family definition, therefore a widowed daughter-in-law is also entitled for being considered as an eligible person for compassionate appointment. It is to be clearly understood that the finding of the Hon High Court is on the point of a daughter-in-law and not explicitly on a widowed daughter whose eligibility is presumed but qua the existing Rules.
Therefore, the question comes back to the pavilion inasmuch that - can a widowed daughter be considered as part of the 'family' of her blood parents?.
10. Per the guidelines we do not find the name of widowed daughter in the enumerated list of eligible persons. The judgment Page 9 of 10 CAT, Lucknow Bench O.A. No. 123/2017 - Punita Bhatt Vs. U.O.I & Ors. of the Hon High Court is in respect of holding a daughter-in-law. Hence there is no support available to the applicant from the case law cited. Just because the guidelines are framed with a benevolent purpose to avoid indigence of the dependants of an earning member of the 'family', it does not mean that any person not stated in the eligibility list can be added by the Tribunal and thereby amend the very list itself. The Tribunal cannot enter into the shoes of the Executive in framing of rules and guidelines.
11. Hence there is no way that the contention of the applicant can be held forth and so the O.A is liable to be dismissed and is dismissed.
12. No costs.
(Devendra Chaudhry) Member (A) JNS Page 10 of 10