Central Administrative Tribunal - Ernakulam
T.R. Syam Raj vs The Chairman-Cum-Managing Director on 14 June, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 1064 of 2011
Friday, this the 14th day of June, 2013
CORAM:
Hon'ble Mr. K. George Joseph, Administrative Member
T.R. Syam Raj, aged 24 years,
S/o. (late) T.S. Rajasekharan Nair,
(Ex-Telecom Mechanic/
Bharat Sanchar Nigam Limited/
Malayalapuzha Telephone Exchange),
Residing at : Thundiyil House,
Malayalapuzha - Eram PO,
Pathanamthitta District, Kerala State. ..... Applicant
(By Advocate - Mr. T.C.G. Swamy)
V e r s u s
1. The Chairman-cum-Managing Director,
Bharat Sanchar Nigam Ltd.,
New Delhi - 110 001.
2. The Chief General Manager,
Bharat Sanchar Nigam Limited,
Telecommunications, Kerala,
Thiruvananthapuram - 695 033.
3. The Deputy General Manager (Admn.),
Office of the Chief General Manager,
Telecommunications,
Thiruvananthapuram-695 033. ..... Respondents
(By Advocate - Mr. Johnson Gomez)
This application having been heard on 06.06.2013, the Tribunal on
14.06.13 delivered the following:
O R D E R
The father of the applicant while in service of the respondents died on 03.02.2006. He was survived by the applicant, his elder brother and his mother. The applicant had submitted an application for appointment on compassionate ground which was rejected vide Annexure A-1 order dated 10.03.2008 on the ground that the net points based on the guidelines dated 27.06.2007 scored by the applicant come to less than 55. Aggrieved, the applicant has filed this O.A for the following reliefs:
(i) Call for the records leading to the issue of Annexure A-1 and quash the same;
(ii)Declare that A-2 guidelines for an appointment on compassionate grounds is totally unreasonable, irrational, opposed to the public policy, arbitrary, discriminatory and unconstitutional and quash the same;
(iii)Direct the respondents to consider the applicant for an appointment on compassionate grounds duly taking into consideration the actual indigent condition of the applicant's family and as per the guidelines for assessment of indigent condition in existence as the date of application for an appointment on compassionate grounds and direct further to grant an appointment on compassionate grounds to a post commensurate with the applicant's educational qualifications and availability f vacancies;
(iv)Award costs of and incidental to this application;
(v)Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.
2. The applicant contended that the indigence of the family cannot be assessed taking into account the relationship of the dependant who applies for the post. The 05 points given per dependant would be opposed to the public policy of small family norms in as much as more the number of dependants more the points. The weightage points by reckoning the death benefits and family pension is opposed to various decisions of the Hon'ble Supreme Court. The Annexure A-2 indicating various weightage points unrelated to the actual liabilities and hardships faced by the deceased family is arbitrary. It is not the case of the respondents that there are no vacancies. The applicant's case was covered under the Scheme which was in force as on the date of the death of applicant's father as also on the date of application. Therefore, rejection of the applicant's case on the basis of the guidelines issued after the demise of his father or after the date of submission of the application for compassionate appointment is opposed to all canons of equality, justice and fair play.
3. The respondents in their reply statement submitted that the application for compassionate appointment dated 26.10.2006 was received by them on 24.04.2007. The BSNL Corporate Office had withdrawn the powers vested with the High Power Committees of the Telecom Circles to take decision on requests for compassionate appointment, vide letter dated 27.12.2006. Even by allotting the maximum weightage points as suggested by the applicant, he is eligible for only 53 points as against the 43 points scored by him. As such his case does not come under the indigent list. It is true that a family with more number of dependant children have a higher chance to secure more points. But it should be noted that the BSNL gives due consideration for the liabilities left behind by the deceased employee in the weightage point system. The respondents also submitted that the weightage point system does not take into account the financial liabilities left behind by the deceased employee. Even by considering all the financial liabilities as claimed by the applicant, he will not come under the indigent list. The respondents relied on the decision of the Hon'ble Supreme Court in State Bank of India and Another vs. Raj Kumar in Civil Appeal No. 1641 of 2010, wherein it was held that the compassionate appointment application has to be considered based on the scheme as is available at the time of consideration and not at the time of making the application which was followed by this Tribunal in O.A.No. 577/2011. Weightage system is objective and a more appropriate assessment of the indigent condition.
4. I have heard Mr. T.C. Govindaswamy, learned counsel for the applicant and Mr. Johnson Gomez, learned counsel appearing for the respondents and perused the records.
5. M.A. No. 1121/11 for condonation of delay of 132 days in filing this O.A is allowed.
6. The representation of the applicant for appointment on compassionate ground was rejected on the basis of the new guidelines introduced with effect from 27.06.2007 to determine the indigent condition of the family of the deceased employee. The question of considering the applicant's case as per the earlier scheme/ guidelines does not arise in view of the decision of the Hon'ble Supreme Court in State Bank of India and Another vs. Raj Kumar (supra). Further, O.A. No. 577/2011 was disposed of by this Tribunal following the decision of the Hon'ble Supreme Court in the aforesaid Civil Appeal as under :
"6. The Hon'ble Apex Court in State Bank of India & Anr. Vs. Raj Kumar in Civil Appeal No. 1641 of 2010 had in fact referred to the decision of the Apex Court in State Bank of India Vs. Jaspal Kaur - 2007 (9) SCC 571 corresponding to 2007 (2) SCC (L&S) 578 and held that the observations made in the earlier judgment was with reference to a claim made by the applicant for enhancement of the ex-gratia payment based on the new scheme and the decision has been cited out of context. In the light of the latter decision of the Apex Court, it has to be held that the compassionate appointment application has to be considered based on the scheme as is available at the time of consideration and not at the time of making the application. If so the respondents cannot be found faulted for non-considering the application based on Annexure A-3....."
In view of the settled legal position, the contention of the applicant that his case is covered under the earlier scheme/guidelines is not tenable.
7. As per the new guidelines to determine the indigent condition, the applicant has scored only 43 points against 55 points required for recommending his case for appointment on compassionate ground. The respondents have submitted that even by allotting maximum points as suggested by the applicant, he is eligible for 53 points, falling short of 02 points. This submission amounts to admitting that allocation of 43 points to the applicant is not correct. Further, the respondents have admitted that the weightage points system does not take into account the financial liabilities left behind by the deceased employee. As per the compassionate appointment scheme, while considering a request for appointment on compassionate ground a balanced and objective assessment of the financial condition of the family has to be made taking into account its assets and liabilities (including he benefits received under the various welfare schemes) and all other relevant factor such as the presence of an earning member, size of the family, ages of the children and the essential needs of the family, etc. Therefore, to the extent the check list with reference to the weightage points system, does not include the liability of the deceased employee, the assessment of the request of the applicant for appointment on compassionate ground cannot be considered as balanced and objective. The Sub Divisional Officer reported that the applicant's family had a debt of nearly Rs. 03 lacs and that the financial status and the living standard of the family is poor. But it appears that his report has been totally ignored in making the assessment of the indigent condition of the family of the deceased employee. Ignoring the report of the officer who conducted spot visit is not in the interest of objectivity.
8. The applicant owns a house. This aspect is taken note of. But the fact that it is a small asbestos roofed house built with hollow bricks is a material point in considering item No. 6 in the check list. 10 points are allotted if the family is living in a rented house and does not own a house. But it is quite possible that a family living in own hut may be living in more acute poverty than a family living in a rented house.
9. If the children are liabilities left behind by the deceased employee for which the weightage points system gives due consideration, as claimed by the respondents, then it is not open to them to disregard the financial liabilities left behind by him. 15 points are granted if the widow is seeking appointment on compassionate ground. If a son/daughter seeks employment under the compassionate appointment scheme, no weightage points are given. If the widow of the BSNL employee happens to be illiterate or sick or there is no widow at all, then the dependant son/daughter could be in a worse situation, if no weightage points are given to son/daughter. The check list for assessing the indigent condition calls for revision. The respondent may consider this observation so that the weightage point system which has been designed to bring uniformity in assessing the indigent condition of the family of the deceased; achieves its purpose without losing the spirit of the compassionate appointment scheme.
10. In the light of the above discussion, in the interest of justice and fair play, the case of the applicant calls for a relook by the respondents. Accordingly, it is ordered as under.
11. Annexure A-1 communication dated 20.02.2008/10.03.2008 is set aside. The respondents are directed to reconsider the case of applicant for appointment on compassionate ground duly taking into consideration the indigent condition of the applicant's family, peculiar circumstances of this case and in the light of the observations made in this order, under para 5 of the policy guidelines in Annexure R1(b) and communicate their decision by a speaking order to the applicant within 03 months from the date of receipt of a copy of this order.,
12. O.A is allowed to the extent indicated above. No order as to costs.
(K. GEORGE JOSEPH) ADMINISTRATIVE MEMBER cvr