Central Administrative Tribunal - Allahabad
Smt. Shyama Bansal W/O Late Santosh ... vs Banaras Hindu University on 20 April, 2012
(RESERVED) CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the 20th day of April 2012. HONBLE MS. JAYATI CHANDRA, MEMBER A ORIGINAL APPLICATION NO. 1064 OF 2010 1. Smt. Shyama Bansal W/o Late Santosh Kumar Bansal R/o 1/37 Katghar Idgah, Agra. 2. Sanjeev Kumar Bansal S/o Late Santosh Kumar Bansal, R/o 1/37 Katghar Idgah, Agra. Applicants VE R S U S 1. Bharat Sanchar Nigam Limited through its Chairman-cum-Managing Director, New Delhi. 2. Chief General Manager, Bharat Sanchar Nigam Limited, U.P. West Circle, Meerut. 3. General Manager, Bharat Sanchar Nigam Limited Telecom District, Agra. ..Respondents Advocate for the applicant: Shri B.N. Singh Shri D.P. Singh Advocate for the Respondents : Sri D.S. Shukla Reserved on 29.3.2012 O R D E R
The instant O.A. has been instituted with a prayer that order dated 7.11.2008 (Annexure A-1) passed by the respondent No.2 be set aside and a direction be given to the respondents to grant employment to Applicant No.2 on compassionate ground by adopting and applying the policy and guidelines which were in vogue at the time when application dated 11.4.2004 seeking appointment on compassionate ground was moved by the applicant.
2. The brief facts and pleadings of the parties are as follows:-
One Shri Santosh Kumar Bansal, Regular Mazdoor (R.M.) expired on 28.12.2003 at the age of 55. He was survived by his wife, Applicant No.1, two sons, elder aged about 37 years, married and earning, younger (applicant No.2) aged about 34 years unmarried and unemployed, two daughters, elder aged about 30 years approx.-married and younger (Swati Bansal) approx. 27 years unmarried and unemployed.
3. Applicant No.2, Sanjeev Kumar Bansal moved an application before Respondent No. 3 in prescribed proforma on 11.4.2004 seeking employment on compassionate ground on a class III or Class IV posts against any one of about 2460 Class IV posts or 257 posts of Class III posts available in the various offices of the Respondents. The respondents sought further details of the condition of the family on 15.9.2004 (Annexure A-3). The applicant No.1 submitted her affidavit and affidavit of her elder son, Ravi Kumar Bansal and dependent daughter Swati Bansal (Annexure A-4 and A-5) stating their conditions.
4. Applicants gave various letters dated 10.01.2005, 08.10.2005, 12.09.2005, 08.07.2006, 11.12.2006, 06.01.2008 and 25.05.2010. Finally the Department issued letter dated 07.11.2008, after a lapse of four years, turning down the applicants prayer on the ground that the prayer of the family had been considered by the Corporate High Power Committee (CHPC) on 30.6.2008 on the basis of New Guideline issued by the respondent No.1 through his Corporate Office letter dated 27.06.2007. As per the weightage point system given to a family to measure its status in terms of need, the applicants failed to obtain the minimum weightage point of 54, having been awarded only 45.
5. The Applicants have averred that the respondents have erred in assessing the factual condition of family, which include:-
(1) A small house of 58.55 sq. ft. valued at Rs.3,30,000/-
(2) Family pension of Rs. 2840+DA, due to be reduced to Rs.1704+DA w.e.f. 4.10.2010.
(3) Terminal benefits amounting to Rs._2,91,627 which was consumed in repaying loans.
(4) Elder son unable to contribute to the family living separately with his nuclear family.
(5) Liability of an unmarried daughter.
(6) Outstanding loan.
(7) Seriously illness of applicant NO.1.
6. The respondents have also grossly erred in basing their decision on the new guidelines introduced in 2007 instead of basing their decision on the prevalent policy of 2003/2004 wherein compassionate appointment was granted to a member of the family of deceased government servant.
7. Learned counsel for the applicant has placed reliance on the following decisions:-
(1) Vinod Kumar Ram Vs. Banaras Hindu University, Varanasi and others passed in Writ Petition No. 14491 of 2008 on 26.11.2010. Honble High Court has held that provision of new guidelines was wholly illegal.
(2) Manoj Kumar Gaur Vs. State of U.P and ors. reported in [2009 (4) ADJ 89 (LB)], which has held that statutory right for giving compassionate appointment cannot be denied due to delayed decision.
(3) V. Sivamurthy Vs. State of Andhra Pradesh and Others reported in [2009(120) FLR 164]. In the aforesaid decision, Honble Supreme Court has held that compassionate appointment is an exception to the Rules.
8. Respondents have stated that the case of compassionate appointment of Shri Sanjeev Kumar Bansal (applicant NO.2) was considered by C.H.P.C held on 30.6.2008 on the basis of new guidelines issued by Corporate Office, New Delhi vide letter No. 273-18/2005-Pers-IV dated 27.06.2007 with reference to Weightage Point System within the DOPT Guidelines (DOPT) OM No. 14014/C/94-Estt (D) dated 09.10.1998. As per Weightage Point System, the applicants had gained 45 points and not the qualifying 55 weightage point.
9. The respondents have justified the weightage point system citing orders of C.A.T. Ahmadabad Bench passed in O.A. NO. 377 of 2008 Shri H.C. Patel Vs. Union of India and others. The relevant portion of C.A.T. Ahmadabad Bench order reads as under:-
We do not think that it would be appropriate to interfere in the matter especially since the weightage point system has proven self to be valid and will eliminate the element of corruption and nepotism, which were the base of challenge in the Court of law by the non-selected persons claiming appointment on compassionate ground.
10. The learned counsel for the respondents have cited the following:-
(a) Order/decision in O.A. No. 838 of 2009 filed before the Allahabad Bench of Central Administrative Tribunal, delivered on 02.3.2011.
(b) Honble Supreme Court in the case of Umesh Kumar Nagpal Vs. State of Haryana and Ors. (1994) 4 Supreme Court Cases 138 highlighting following:-
It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute.
Holding therein that The Authority concerned must consider as to whether the family of the deceased employee is unable to meet the financial crisis resulting from the employees death.
(c) Honble Supreme Court in its decision of Life Insurance Corporation of India Vs. Asha Ramchhandra Ambekar (Mrs) and another (1994) 2 Supreme Court Cases 718, has held as under:-
10. Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration.
(d) In the decision of Punjab National Bank Vs. Ashwani Kumar Taneja (2004) 7 SCC 265. The Honble Apex Court on page 268, Honble Supreme Court has held following observation:-
Appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement of making appointments on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis As was observed in State of Haryana V. Rani Devi it need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the premises that he was dependent on the deceased employee. Strictly, this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulation or to issue such administrative orders which can stand the test of Articles 14 and 16
11. I have heard learned counsel for the parties and also seen the records including the Written Arguments submitted by both the parties. It is seen that various pronouncement of the Apex Court between the years 1994 to 2004 have held that appointment on compassionate are not statutory rights in strict accordance with Article 14 and Article 16 of Constitution and therefore have to be made in accordance with Rules, Regulations and Administrative instructions which are able to assess financial condition of the family of the deceased and the crisis it is faced with. I have also perused the order delivered by the Central Administrative Tribunal, Allahabad Bench on 2.3.2011 in which the very issue of use of guidelines which were introduced much after the occurrence of the death of deceased is taken into account. It is observed in the said Order:-
The application of the applicant for compassionate appointment was received in the office on 31st March, 2005 which was incomplete and afterwards formalities were completed on 06th March, 2006 and again application was considered but a letter was received from the BSNL Corporate Office on 27th December 2006 that the compassionate appointment will not be considered at Circle Level any more and necessary guidelines for future course of action shall be issued in due course and hence in view of this letter the meeting was not conducted on the circle level as per instruction of DOP&T and BSNL weightage point system was introduced in order to bring the uniform policy.
12. It is held that the applicant cannot claim compassionate appointment as a matter of right. The respondents had gone into the various conditions of family as enumerated in para 5.Condition no.1 to 4 are mutually admitted. The fact of the valuation of the property is immaterial as it is used for living in. The other condition illness, continued loan, liability do not come under the provision of Sudden crisis. In so far as the usage of the weightage point system is concerned the guidelines were framed by DOPT in 1998 doubtless in response to the various pronouncements made by the Apex Court and other Courts
13. In the matter of delay, it is held that the it is certainly regrettable that respondents took four years to come a decision to turn down the application for compassionate employment given by applicant No.2, thereby allowing the family to live in hope for so long. It is hoped that in all future cases decision making is more prompt and need for giving immediate relief. It is observed in:-
State of J&K Vs. Sajab Ahmad Mir (2006) 5 SCC 766. Honble Supreme Court has held as under:-
11. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say goodbye to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution.
14. Much time has passed between the sudden death of the earning member resulting in a financial loss equivalent to the take home salary of the breadwinner. The nature of compassionate appointment, which is to give immediate relief, has become vitiated by passage of time. A compassionate appointment at this stage will be in the nature of a bonanza to give permanent employment to a person who may not otherwise be eligible.
15. Hence, there is no reason to interfere with the impugned order dated 7.11.2008 (Annexure A-1), therefore, O.A. is dismissed. No order as to costs.
Member (A) Manish/-
The respondents in turning down the applicants application for appointment had grossly earned on grounds of not meeting the minimum criteria for compassionate appointment as outlined in. They had relief on a policy and guidelines which was introduced in 2007 and which was not even adopted by the Corporation in its Board of Directors. They should be based their decision on the prevalent policy of 2003/2004 wherein compassionate appointment was granted to a member of a family, which had lost its earning member while in service. Moreover even if the weightage system for measuring the situation of a family was involved, the respondents have not evaluated the applicants actual situation, the basis for which was not made available to applicants by respondents. The respondents in para________ of their counter affidavit have quoted that.........
4. The statement of the respondents have been opposed by the learned counsel for the applicant as already mentioned in the rejoinder affidavit and have also filed an application dated 2.01.2011 for summoning Headquarter Circular dated 27.6.2007 and merit sheet which was placed before Corporate High Power Committee. However during arguments this fact was not pressed by the learned counsel for the applicant.
5. Learned counsel for the respondents has placed reliance on the following decision:-
(4) Vinod Kumar Ram Vs. Banaras Hindu University, Varanasi and others passed in Writ Petition No. 14491 of 2008 on 26.11.2010.
(5) Manoj Kumar Gaur Vs. State of U.P and ors. reported in [2009 (4) ADJ 89 (LB)] (6) V. Sivamurthy Vs. State of Andhra Pradesh and Others reported in [2009(120) FLR 164]
6. The decision of the Apex Court in SLP (1) NO. 10504 of 1993 clearly held as under:-
(a) compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment.
(b) mere dealt of an employee does not entitle his family to compassionate appointment. The authority concerned must consider as to whether the family of the deceased employee is unable to meet the financial crises resulting from the employees death.
7. However, if one were to take recourse to a pronouncement close to the date on which the application for compassionate appointment was made. Reading of the ruling given by Apex Court 2004 (7) Supreme Court case 265) Compassionate apointment-Considerations therefor- Denial of, on ground of non-existence of financial hardship- propriety- Retiral benefits received by the heirs of the deceased employee, held to be considered, as has been categorically held in Kunti Tiwary case (2004) 7 SCC 271- More so, when the Scheme applicable, also requiring amounts received under various heads to be taken into account while determining the financial status and necessity of compassionate appointment-High Court erred in holding to the contrary
8. The matter of compassionate appointment had been agitated before various Court. DOPT in 1998 issued guidelines whereby an attempt was made to being in greater objectively to the weighing grounds for making an exception to the normal recruitment process and by granting appointment on compassionate grounds.
9. The respondents had in another case had where death of the Government employee had occurred earlier to the option of the guidelines in 2007 had also adopted the weightage system.
10. Therefore, there is no course for declaring the decision of respondents had only on ground of using the weightage system and not the earlier policy. In so far as the jurisdiction of assessing the claim of the applicant as mentioning lesser point than the minimum cut off of 54 points is concerned. It is noted that there is no disagreement in between both the parties in the majority of the condition of the deceased family. The difference as claimed by Applicant is more on account of pending liability that is prior loan, marriage of daughter (aged 27 years) and illness of the applicant NO.1 and the claim that the 2 grown up children (elder son aged 37 years and married daughter aged 30 years) cannot or will not help out the family.
??
??
??
??
12 O.A. NO. 1064/10