Central Administrative Tribunal - Cuttack
Ashok Kumar Routray vs D/O Telecommunication on 17 December, 2021
O.A. No. 349 of 2014 1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH No. OA 349 of 2014 Present: Hon'ble Mr.Swarup Kumar Mishra, Judicial Member Ashok Kumar Routray, aged about 41 years, S/o Late Muralidhar Routray, At-Tiranpada, PO-Kothapatna, PS-Balianta, Dist-Khurda.
......Applicant VERSUS
1. Chief General Manager, Bharat Sanchar Nigam Limited, Orissa Telecom Circle, Bhubaneswar - 750100.
2. Divisional Engineer, Telecom (Admn), Office of the GMTD, BSNL, At-Link Road, Cuttack, Pin-753002.
......Respondents
For the applicant : Mr.A.Mishra, counsel
Mr.Satyajit Behera, counsel
For the respondents: Mr.K.C.Kanungo, counsel
Heard & reserved on : 18.11.2021 Order on :17.12.2021
O R D E R
Per Mr.Swarup Kumar Mishra, J.M.
The applicant has filed the present OA under Section 19 of the Administrative Tribunals' Act, 1985 seeking the following reliefs :
"Under these circumstances it is most humbly prayed therefore that this Hon'ble Tribunal may graciously be pleased to quash the rejection order in respect of the applicant at Annexure A/8 and direct the respondents to give appointment to the applicant under rehabilitation assistance scheme considering his case basing on the guidelines of 2005 instead of 2007 within a specific period.
Or pass any other order/orders as this Hon'ble Tribunal deem fit and proper in this case.
Allow this Original Application with cost."
2. The brief facts of the case are that the father of the applicant died on 18.4.2004 while continuing in service and immediately thereafter the applicant applied for appointment under rehabilitation assistance scheme on 28.12.2004. On 16.9.2005 a letter was issued to the applicant intimating the date of enquiry of the authorities at the house of the applicant. New guidelines for consideration of cases under rehabilitation assistance scheme came into force in 2007. The applicant went on making representation to the respondent authorities. The latest representation was made on 8.11.2009 (Annexure A/7) O.A. No. 349 of 2014 2 which was rejected on 6.8.2012 (Annexure A/8) considering the case of the applicant on the basis of guidelines issued in 2007. The applicant has filed the present OA challenging the said rejection order stating that 2007 guidelines are not applicable to the applicant because he applied for compassionate appointment in the year 2005. The applicant has submitted that the rejection is illegal and not sustainable in the eye of law because the case of the applicant was pending with the respondents for consideration since 2005 for which subsequent order issued will not be applicable to the case of the applicant and the respondents in an arbitrary manner have rejected the case of the applicant. The applicant has therefore prayed for quashing of the order dated 6.8.2012.
3. In the Counter filed by the respondents it is stated that inquiry was conducted regarding financial condition of the family and the case was considered by the Circle High Power Committee (in short CHPC) in accordance with the guidelines of the BSNL dated 27.6.2007 (Annexure-R/2) and the OM dated 9.10.1998 of the DOPT (Annexure-R/1) and the vacancies available under the compassionate appointment quota was offered to more needy persons than the applicant. It is stated that the BSNL Board has approved a point system for assessment of the indigent condition, which was circulated vide the circular at Annexure-R/2 and it was decided by the authorities that the cases with 55 or more points are to be treated as eligible for consideration of the CHPC. It is stated that the guidelines dated 27.6.2007 aimed to achieve uniformity in assessment of the indigent condition of the family. As per the above guidelines, the applicant could get 45 points basing on the facts and the inquiry report, for which his case was not accepted by CHPC. The following judgments have been referred to -
1. H.C.Patel -vs- Union of India & Others [OA No. 377/2008 (CAT, Ahmedabad Bench)]
2. State Bank of India -vs- Raj Kumar [(2010) 11 SCC 661]
3. State Bank of India & others-vs-Jaspal Kaur [2007(2) SCC (L&S) 578]
4. State of Gujarat & Orts. -vs- Arvind Kumar Tiwary & Anr. [Civil Appeal No. 6468/2012]
5. State Bank of India & others-vs-Jaspal Kaur [2007(2) SCC (L&S) 578] O.A. No. 349 of 2014 3
4. Learned counsel for the applicant relied on few decisions including the following:
1. CAT, Cuttack Bench in OA No. 122/2015 (Surendra Prasad vrs Union of India) dated 29.04.2016.
2. Hon'ble CAT, Chandigarh Bench in OA No. 247/2016 dated 10.03.2017.
3. Hon'ble High Court of Madras in WP (C) No. 25164/2013 in the case of Union of India and others vrs E. Bharat dated 11.11.2016
4. Hon'ble CAT, Allahabad Bench in OA No. 1003/2011 in Shamimul Haque Safari dated 11.10.2018.
5. Learned counsels for the parties reiterated their stand taken in their respective pleadings and having heard them at length, perused the materials on record including the decisions referred to above.
6. The applicant's case is that the applicant's father expired in 2004 and he had applied for the compassionate appointment in the year 2005, for which he claims that his case was required to be considered as per the circular which was in force prior to the circular dated 27.6.2007. The case of the respondents is that the case of the applicant has been duly considered, but his merit point as per the circular dated 27.6.2007 (Annexure R/2) was below 55 which is the cut off merit point fixed for deciding the cases for compassionate appointment.
It is stated that there is no difference between the DOPT guidelines dated 9.10.1998 (Annexure R/1) and the circular dated 27.6.2007 (Annexure R/2), except for the fact that to bring uniformity in assessment of indigent condition of the family the point system has been specified vide the guidelines in circular dated 27.6.2007. It is further argued by the respondents that the said circular has also been upheld by the Tribunal in OA 377/2008 of Ahmedabad Bench of this Tribunal.
7. Admittedly the father of the applicant died prematurely while in service on 18.4.2004 leaving behind the widow, three sons and one daughter. The applicant applied for compassionate appointment on 28.12.2004. The respondents considered the case of the applicant and rejected and communicated to the applicant in the letter dated 6.8.2012 (Annexure A/8) which is quoted herein below :
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"I am directed to inform you that the request for Compassionate Ground Appointment applications as mentioned below, from the dependents of the deceased employees of your SSA/Unit were considered by the Circle High Power Committee in details on the basis of information/facts furnished by your office, in terms of DOP&T guidelines in OM No. 14014/6/1994-Estt(D) dtd. 09.10.1998 and BSNL Corporate Office guidelines on Weightage Point System (WPS) vide 273-18/2005-Pers IV dtd. 27.6.2007. Taking into account the assets, liabilities of the families of the deceased official, support arrangements, involved time period, long term commitment/responsibility, overall indigent conditions and other required parameters, the Circle High Power Committee decided that the cases are not found fit for Compassionate Ground Appointment as per WPS norms. Hence the requests of these applicants are regretted."
8. Learned counsel for the applicant submitted that the rejection by taking into consideration the circular which came into effect from 27.6.2007 when the father of the applicant died on 18.4.2004 is bad in law and, therefore, the case of the Applicant is to be reconsidered based on the circular prevailing at the time of death of his father. On the other hand it is the case of the respondents that there is no illegality in applying the provisions/guidelines/criteria which was prevalent at the time of consideration of the case of the applicant for compassionate appointment. To substantiate this claim, learned counsel for the respondents placed reliance on the decision of Division Bench of Hon'ble Apex Court in the case of State Bank of India & ors vrs Sheo Shankar Tewari in SLP (C) No. 30335 of 2017 disposed of on 08.02.2019 & N. C. Santosh versus State of Karnataka & Ors in Civil Appeal No. 9280-9281 of 2014 decided on 04.03.2020. Accordingly, Respondents' Counsel has prayed for dismissal of this OA.
8. The father of the applicant died on 18.04.2004 and on 28.12.2004, the applicant applied for appointment on compassionate ground. On 16.9.2005 a letter was issued to the applicant intimating the date of enquiry of the authorities at the house of the applicant. The respondents considered and rejected the grievance of the applicant on the ground that the case of the applicant does not merit consideration as per DoPT letter dated 09.10.1998 and BSNL letter dated 27.06.2006. In the case of State Bank of India & ors vrs Sheo Shankar Tewari in SLP (C) No. 30335 of 2017 disposed of on 08.02.2019 question as to whether the rule which was prevalent at the time of death of employee or the rule prevailing at the time of consideration of O.A. No. 349 of 2014 5 compassionate appointment came up for consideration. The Hon'ble Apex Court have directed to place the matter before larger bench (at least three Hon'ble Judges of the Court) to decide the said issued. Subsequently this question came up for consideration before three judges Bench of the Hon'ble Apex Court in the case of N. C. Santosh versus State of Karnataka & Ors in Civil Appeal No. 9280-9281 of 2014 decided on 04.03.2020 wherein the Hon'ble Court at para 17 took note of order in Sheo Shakar Tewari case (supra) and held at para 20 that "norms prevailing on the date of consideration of the application should be the basis for consideration of claim for compassionate appointment".
9. The applicability of the circulars in the case of compassionate appointment came up before the Hon'ble High Court of Orissa in WA No. 367 of 2021 disposed of on 26.10.2021 (State of Odisha -vs- Yagyansis Ray) an expert from the decision is quoted as under:
20. In N.C. Santhosh v. State of Karnataka (2020) 7 SCC 617 a three-
Judge Bench of the Supreme Court reviewed the entire case law including the earlier judgments in State Bank of India v. Raj Kumar (2010) 11 SCC 661 and MGB Gramin Bank v. Chakrawarti Singh (2014) 13 SCC 583. The unanimous view of the three-Judge Bench in N.C. Santhosh W.A. No.367 of 2021 and W.P.(C) No.28023 of 2021 Page 11 of 17 was that the claim should be considered as per the amended Rules that were prevalent at the time of consideration of the application and not the Rules that were prevalent on the death of the government servant. The Supreme Court in N.C. Santhosh also took note of the recent judgment in State of Himachal Pradesh v. Shashi Kumar (2019) 3 SCC 653 where the Court reiterated that appointment to a public post has to be made acknowledging the principles consistent with Articles 14 and 16 of the Constitution of India and that compassionate appointment is an exception to the general rule. In N.C. Santhosh (supra), the conclusion of three judge Bench was as under:
"19. Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependant 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."
21. The three judge Bench in N.C. Santhosh (supra) held that the decision in Canara Bank v. M. Mahesh Kumar (supra) was inconsistent with the earlier views of other coordinate W.A. No.367 of 2021 and W.P.(C) No.28023 of 2021 Page 12 of 17 Benches. The relevant discussions in this regard in N.C. Santhosh reads thus: O.A. No. 349 of 2014 6
"14. This Court in SBI vs. Raj Kumar (2010) 11 SCC 661 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 vs. Chakrawarti Singh (2014) 13 SCC 583 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 & Anr. vs. M. Mahesh Kumar (2015) 7 SCC 412 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 14.02.2005), 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. A two Judge bench headed by Justice Uday U. Lalit, J. noticed the Supreme Court's view in SBI vs. Raj Kumar (supra) and MGB Gramin W.A. No.367 of 2021 and W.P.(C) No.28023 of 2021 Page 13 of 17 Bank vs. Chakrawarti Singh (supra) on one side and the contrary view in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) and felt the necessity of resolution of the conflicting question on whether the norms applicable on the date of death or on the date of consideration of application should apply.
Accordingly, in SBI v. Sheo Shankar Tewari (2019) 5 SCC 600, 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 (supra) 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 appellants counsel on Canara Bank v. M. Mahesh Kumar (supra) as also the opinion of the learned Single Judge of the Karnataka High Court in Uday Krishna Naik v. State of Karnataka (1999) SCC OnLine Kar 209, it cannot be said that the appellants claim should be considered under the unamended provisions of the Rules prevailing on the date of death of the Government employee."
22. The net result is that the decision in Canara Bank v. M. Mahesh Kumar (supra) is no longer good law. However, learned counsel for the Respondent in W.A. No.367 of 2021 and the Petitioner in W.P.(C) No.28023 of 2021 urged that post the decision in N.C. Santhosh (supra), a two-Judge Bench of the Supreme Court had again held in State of W.A. No.367 of 2021 and W.P.(C) No.28023 of 2021 Page 14 of 17 Madhya Pradesh v. Amit Shrivas AIR 2020 SC 4541 as under:
"It is trite to say that there cannot be any inherent right to compassionate appointment but rather, it is a right based on certain criteria, especially to provide succor to a needy family. This has to be in terms of the applicable policy as existing on the date of demise, unless a subsequent policy is made applicable retrospectively."
23. Reliance is also placed on the decision dated 6th September 2021 of a two-Judge Bench of the Supreme Court of India in SLP (C) No.19252 of 2018 (Seema Kausar v. State of Maharashtra) where it has been held as under:
O.A. No. 349 of 20147
"It cannot be disputed that the appointment on compassionate ground is required to be made only as per the policy of the Government and only in the case where the eligibility criteria under the Scheme has been satisfied.
It also cannot be disputed that the policy which was prevailing at the time when the deceased employee died/the application was made only is required is to be considered."
24. The decision in Amit Shrivas (supra) is dated 29th September 2020 whereas the decision in N.C. Santhosh (supra) is dated 4th March, 2020. Yet the decision in Amit Shrivas (supra) does not appear to have taken note of the larger Bench decision in N.C. Santhosh (supra). In any event, on a careful perusal of the said decision in Amit Shrivas, it appears that it did not turn on the W.A. No.367 of 2021 and W.P.(C) No.28023 of 2021 Page 15 of 17 question whether the application for compassionate appointment had to be considered in terms of the policy prevalent at the time of the death of the government employee. It envisages that there could be a subsequent policy which is made applicable retrospectively. However, the case itself did not turn on that issue because it was found on facts that the father of the Respondent had not attained 'regular status' and therefore the applicant (the son) would not be eligible under the scheme in question.
25. Turning to Seema Kausar (supra), it was a short two paragraph order by a two-Judge Bench dismissing the SLP, with no reference made to N.C. Santhosh (supra) which is by a three Judge Bench.
26. Learned counsel for the Respondent in writ appeal and the Petitioner in writ petition then referred to the decision in the Director of Treasuries in Karnataka v. V. Somyashree (decision dated 13th September 2021 in Civil Appeal No.5122 of 2021). The said decision in fact acknowledges that after N.C. Santhosh (supra), it is clear that "the norms prevailing on the date of consideration of the application should be the basis for consideration of claims for compassionate appointment." Therefore, the decision is also of no assistance to the Applicants for compassionate appointment in the present case.
27. Reference is next made to the decision dated 28th September 2021 of a two-Judge Bench of the Supreme Court in Civil Appeal W.A. No.367 of 2021 and W.P.(C) No.28023 of 2021 Page 16 of 17 No. 6019 of 2021 (The Chief General Manager, Telecommunication, BSNL v. Vidya Prasad). The Court finds that there is no reference in the said judgment to the decision in N.C. Santhosh (supra). The question turned on the delay in considering the entertaining the application seeking compassionate appointment. In the present case, there is no prayer made in either of the petitions in that regard.
28. This Court has also examined the decision dated 5th October 2021 of a two judge Bench of the Supreme Court in Civil Appeal No.6003 of 2021 (State of Uttar Pradesh v. Premlata) where again the decision of the larger Bench in N.C. Santhosh (supra) has been summarized and reiterated. Consequently, the said decision is also of no assistance to the applicants for compassionate appointment before this Court.
29. For the aforementioned reasons, this Court holds that the learned Single Judge was in error in setting aside the decision dated 31st December 2020 passed by the Commissioner of Excise rejecting the application under the RAS of the Respondent in W.A. No.367 of 2021. Accordingly, the impugned order dated 5th April 2021 of the learned Single Judge in W.P.(C) No.9712 of 2021 is hereby set aside. W.A. No.367 of 2021 is allowed.
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30. For the same reasons, this Court upholds the order dated 26th April 2021 issued by the Excise Deputy Commissioner, Odisha. W.A. No.367 of 2021 and W.P.(C) No.28023 of 2021 Page 17 of 17 W.P.(C) No. 28023 of 2021 is accordingly dismissed, but in the circumstances, no order as to costs."
10. By applying the law to the facts of the case we find that the law is settled that norms prevailing on the date of consideration of application should be basis for consideration of claim for compassionate appointment. The decisions relied by learned counsel for the applicant are not applicable in view of the settled laws mentioned above.
11. Accordingly, the OA is dismissed but in the circumstances without any order to cost.
(SWARUP KUMAR MISHRA) MEMBER (J) I.Nath