Central Administrative Tribunal - Allahabad
Anand Kumar vs M/O Communications on 12 September, 2023
(Reserved)
Central Administrative Tribunal, Allahabad
Bench Allahabad
****
Original Application No. 412 of 2019
This the 12th Day of September, 2023.
Hon'ble Mr. Justice B.K. Shrivastava, Member (J)
Anand Kumar son of late Ram Krishna, Resident of 107, Bangali
Colony, Safipur, Harjendar Nagar, District Kanpur Nagar - 208007.
...........Applicant
By Advocate: Shri A.D. Singh
Versus
1. Union of India through its Secretary, Ministry of
Communication, Department of Post Sansad Marg, New Delhi.
2. Assistant Director (Recruitment) of Post, U.P. Circle, Lucknow
226001.
3. Chief Post Master General, U.P. Circle, Lucknow.
4. Chief Post Master, Head Post Office, Kanpur.
...Respondents
By Advocate: Shri Jitendra Prasad
ORDER
Order delivered by Hon'ble Mr. Justice B.K. Shrivastava, Member (J) This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 on 24.04.2019 against the impugned orders dated 13.11.2018 and 20.10.2018 passed by respondent Nos.2 and 4 respectively. By the impugned order, the claim for compassionate appointment submitted by the applicant Anand Kumar has been denied. The relief(s) claimed in Para-8 of the OA is as under:-
Page No.1
"(i) Quash the impugned order dated 13.10.2018 and 13.11.2018 passed by the respondent No.2 and 4 (Annexure A-1).
(ii) Direct the respondents to reconsider the applicant as per office Memorandum dated 26.07.2012 and provide compassionate appointment in any post and place at anywhere with all consequential benefits.
(iii) Grant any other relief, as the applicant might be found entitled to, on the facts and circumstances of the case.
(iv) Allow the original application with cost in favour of the applicant for involving in the litigation."
2. As per the applicant's case, his father late Ram Krishan was posted to the post of Assistant Post Master, Head Post Office Kanpur under the control of respondent No.4 and during his service he expired on 05.10.2014. After the death of his father, the applicant with his mother filed an application Annexure A-3 on 04.10.2016 for compassionate appointment. He submitted all the documents related to the aforesaid application, but after consideration by the impugned order dated 13.10.2018 his claim was rejected and vide letter dated 13.11.2018, the information was given to the applicant.
3. It is submitted by the applicant that the respondents passed the impugned order without considering the facts and circumstances of the case and recorded the perverse finding. As per the established law, the applicant was entitled to get compassionate appointment but the department ignored the Page No.2 various circulars and orders and rejected the claim of the applicant. Therefore, the impugned orders are liable to be set aside and the direction should be given to the respondents for considering the claim of compassionate appointment of the applicant.
4. The respondents opposed the claim of the applicant. It is submitted by the respondents that the department did not commit any mistake by rejecting the claim of the applicant. The department duly considered the claim. The applicant got only 32 merits points while the last candidate selected for compassionate appointment got 52 merits points. Hence, the claim of the applicant was liable to be rejected. It is also submitted that about Rs.27,35,711/- have been paid as Terminal Benefits. The applicant also earning member of the family and the other members are also earning. Family pension Rs.26000/- basic with admissible D.A. also sanctioned. Therefore, he was not the fit candidate to grant the compassionate appointment.
5. For better appreciation, it will be useful to refer to the impugned order Annexure A-1 dated 13.11.2018 by which the applicant has been intimated about the rejection of his application upon the basis of a letter dated 13.10.2018. The order Annexure A-1 reads as under:-
Page No.3
"सेवा में , श्री आनंद कुमार पत्र ु स्व0 राम कृष्ण नि0- 107 बंगाली कॉलोनी, सफीपरु , हरजेन्दर नगर, कानपरु -208007 पत्रांक:बी-14/रिलेक्सेसन/भर्ती/आनंदकुमार/2016/केपीएचओ दिनांक-13.11.2018 विषय: स्व, राम कृष्ण भ0ू प0ू ए.पी.एम. प्रधान डाकघर कानपरु के आश्रित पत्र ु श्री आनंद कुमार का विभाग में अनक ु ं पा के आधार पर भर्ती का मामला।
.................
उपरोक्त विषयक मामले में परिमंडलीय कार्यालय लखनऊ ने अपने पत्रांक-भर्ती/एम-5/28/2017/7 लखनऊ दिनांक 13.10.2018 द्वारा निम्नलिखित वर्णित तथ्यों के आधार पर आपको सचि ू त करने हे तु इस कार्यालय को आदे शित किया है । अतः परिमंडलीय कार्यालय, लखनऊ के निर्देशानस ु ार आपको निम्नलिखित वर्णित तथ्यों से अवगत कराया जाता है :-
5. विभागीय कर्मचारियों से संबंधित अनक ु ं पा आधारित नियक्ति ु यों के प्रकरणों पर विचार हे तु गठित की गई परिमंडलीय शिथिलीकरण सीमित द्वारा 27.09.2018 व 28.09.2018 को संपन्न हुई बैठक में , विषयगत प्रकरण पर एवं अन्य ऐसे सभी प्रकरणों पर डाक निदे शालय, नई दिल्ली के पत्रांक 37/36/2004-एस.पी.बी.-/सी दिनांक 20.02.2010, DOP&T No.14014/2/2009-Estt(D) dated 03.04.2012 circulated vide Directorate no. 37-34/2009-SPB-I/c dated 19.04.2012, DOP&T No.14014/2/2009-Estt(D) dated 11.12.2009 circulated vide Directorate No. 37-34/2009-SPB-I/c dated 16.07.2010, DOP&T No.14014/2/2012-Estt(D) dated 16.01.2013 circulated vide Directorate No. 37-4/2013-SPB-I/c dated 04.02.2013, DOP&T No.14014/2/2012-Estt(D) dated 30.05.2013 circulated vide Directorate No. 37-04/2013-SPB-I/c dated 12.06.2013 and DOP&T no.14014/2/2012-Estt(D) dated 25.02.2015 circulated vide Directorate;s letter no. 37-4/2013-SPB-I/c (Pt) dated 11.03.2015 and 37-4/2013-SPB-I/c dated 13.07.2016 में विहित निर्देशों तथा भारत सरकार एवं डाक विभाग द्वारा समय-समय पर अनक ु ं पा के आधार पर नियक्ति ु हे तु जारी किये गये निर्देशों के अंतर्गत, अभ्यर्थी की शैक्षिक योग्यता तथा संबंधित पदों पर भर्ती नियमावली को ध्यान में रखते हुए विचार किया गया। यह बैठक अनक ु ं पा के आधार पर भर्ती के लिए वर्ष 2016-17(01.01.2016 से 31.03.2017) की निर्धारित रिक्तियों को भरने के लिए आयोजित की गई।
6. अनक ु ं पा के आधार पर नियक्ति ु हे तु निर्धारित मानकों यथा पारिवारिक पें शन, सेवानिवत ृ हित लाभ, मासिक आय, चल-अचल संपत्ति, आश्रितों की संख्या, अविवाहित पत्रि ु यों की संख्या, नाबालिक बच्चों की संख्या व अवशेष सेवा अवधि का संज्ञान लेते हुए तल ु नात्मक मेरिट पॉइंट के आधार पर मामले का गहन परीक्षण किया गया। परं तु अनक ु ं पा के आधार पर नियक्ति ु के लिए निर्धारित सीमित रिक्तियों के कारण परिमंडलीय शिथिलीकरण सीमित द्वारा श्री आनंद कुमार पत्र ु स्व0 राम कृष्ण भ0ू प0ू ए.पी.एम. कानपरु एच.ओ. की अनक ु ं पा के आधार पर नियक्तिु हे तु संस्तति ु नहीं की जा सकी, क्योंकि उनके इस प्रकरण में मात्र 32 मेरिट पॉइंट थे। यह भी सचि ू त किया जाता है की अनक ु ं पा के आधार पर नियक्ति ु के लिए संस्तत ु किये गये अंतिम आवेदक के मामले में 52 मेरी पॉइंट थे।
चीफ पोस्टमास्टर, कानपरु "
Page No.4
6. As per the court's order the respondents filed the calculation sheet on 02.03.2013. As per the aforesaid calculation sheet, the applicant gets only 32 points. The first contention of learned counsel for the applicant is that the total of the points is not correct. The total should be 34 but in the sheet, the total is mentioned as 32. The aforesaid argument is not correct. The points have been allotted for different heads. In the head of monthly income, the points 04 have been allotted in place of 02.
Therefore, after deducting 02 points and adding 04 points, the total comes to 32 in place of 30. Therefore, in view of this court, there is no any mistake in the total of the points allotted to the applicant.
7. Learned counsel for the applicant submitted that the department considers the terminal benefits of Rs.27,35,711/- and family pension of Rs.26,000/- per month. As per learned counsel, the terminal benefits cannot be considered for the compassionate appointment. In this regard, he placed reliance upon Govind Prakash Verma vs. LIC of India and Ors [ 2005 (10) SCC 289 ] judgment dated 23.01.2004. The counsel draws attention towards Para-6 of the aforesaid judgment and submits that the Terminal Benefits received by the widow and the Family Pension cannot be taken into account at the time of deciding the claim for compassionate appointment.Page No.5
8. In view of this court, the aforesaid argument of the learned counsel cannot be accepted. The case cited by the applicant has been held as per-incuriam.
9. It is established by catena of decisions of the Supreme Court that for all government vacancies equal opportunity should be provided to all aspirants as mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right. The object of Compassionate appointment has been considered by Hon'ble Supreme Court in various cases i.e. Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors., 1998(2) SCT 791 = (1998) 5 SCC 192, V. Shivamurthy Vs. State of Andhra Pradesh & Ors., [2008] 13 SCC 730, Mumtaz Yunus Mulani v. State of Maharashtra, (2008) 11 SCC 384 :
(2008) 2 SCC (L&S) 1077], Union of India & Anr. Vs. Shashank Goswami & Anr.,2012[3] ESC 392[SC] = [2012] 11 SCC 307, State of U.P. & Ors. Vs. Pankaj Kumar Vishnoi, 2013 [4] SCT 434 = 2013 [5] AWC 5062 [SC], Chief Commissioner, Central Excise and Customs, Lucknow & Ors. Vs. Prabhat Singh, [2013] 1 UPLBEC 357, MGB Gramin Bank Vs. Chakrawarti Singh, 2013[4] SCT 541 = AIR 2013 SC 3365, Local Administration Department & Anr. Vs. M. Selvanayagam Page No.6 @ Kumaravelu, 2011[2] SCT 763 = AIR 2011 SC 1880, Shreejith L. Vs. Deputy Director (Education) Kerala & Ors.,2012[3] SCT 475 = 2012 [7] SCC 248, H.P. vs. Shashi Kumar (2019) 3 SCC 653. Therefore looking to the aforesaid cases it is established law that compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased.
10. In the case of Govind Prakash Verma vs. Life Insurance Corporation of India and Ors., [2005] 10 SCC = AIR 2004 SC 4155 [decided on 23.01.2004] the court while dealing the issue i.e. "whether payment of terminal/retiral benefits to the family can be taken to consideration?" said in para 6 :-
Page No.7
"In our view, it was holly irrelevant for the departmental authorities ....... to take into consideration the amount which was being paid as family pension to the widow of the deceased ..... and other amounts paid on account of terminal benefits under the Rules. .............. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amount admissible under the Rules."
11. In the case of Union of India vs. Shashank Goswami, AIR 2012 SC 2294, refusal of claim of compassionate appointment upon the basis of getting the terminal benefits exceeding 3 Lakhs, was held justified. The court refers the Govind Prakash Verma vs. Life Insurance Corporation of India and Ors., [2005] 10 SCC = AIR 2004 SC 4155 [decided on 23.01.2004] in which similar issue i.e. "whether payment of terminal/retiral benefits to the family can be taken to consideration?" was considered. After mentioning the aforesaid case the Supreme Court said that:-
"In Mumtaz Yunus Mulani (Smt.) v. State of Maharashtra and Ors., (2008) 11 SCC 384 : (AIR 2008 SC (Supp) 305, this Court examined the scope of employment on compassionate ground in a similar scheme making the dependant of an employee ineligible for the post in case the family receives terminal/retiral benefits above the ceiling limit and held that the judgment in Govind Prakash (supra) had been decided without considering earlier judgments which were binding on the Bench. The court further held that the appointment has to be made considering the terms of the scheme and in case the scheme lays down a criterion that if the family of the deceased employee gets a particular amount as retiral/terminal benefits, dependent of the deceased employee would not be eligible for employment on compassionate grounds."
12. In case of H.P. vs. Shashi Kumar (2019) 3 SCC 653, the Supreme Court in Para-21 and 26 had an occasion to consider the Page No.8 object and purpose of appointment on compassionate ground and considered the decision of the Supreme Court in Govind Prakash Verma vs. L.I.C. (2005) 10 SCC 289, it is observed and held:-
"21. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289, has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered by this Court in Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138. The principles which have been laid down in Umesh Kumar Nagpal have been subsequently followed in a consistent line of precedents in this Court........
26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [Mumtaz Yunus Mulani v. State of Maharashtra, (2008) 11 SCC 384 : (2008) 2 SCC (L&S) 1077] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case."
13. Recently in the case of State of West Bengal Vs. Debabrata Tiwari and Ors., AIR 2023 SC 1467 = AIROnline 2023 SC 174 [03.03.2023] the Supreme Court considered the various cases on the rationale behind a policy or scheme for compassionate appointment and the considerations that ought to guide determination of claims for compassionate appointment. After referring various cases, the Supreme Court said that in determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of Page No.9 the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source. After referring previous decisions of Supreme Court, the following principles emerge:
"i. ......ii. .......iii........ iv. ......... v. In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source."
14. Therefore, looking to the aforesaid settled law, it can be said that the Department/Respondents did not commit any mistake by taking into consideration the terminal benefits and the Family Pension.
15. The second point has been raised by the applicant's counsel that the case of the applicant should be considered for three consecutive years, while the department considers the claim of the applicant only for one time. He prays for direction to consider the claim again. In this regard, the learned counsel for the applicant placed reliance upon order dated 09.07.2019 passed by single bench of this tribunal in O.A. No. 830 of 2017 "Suraj Pratap S/o Late Rajendra Singh vs. Union of India etc." The aforesaid case has been decided by following the Judgment of Food Corporation of India through Executive Director and Page No.10 others Vs. Hari Ram, Special Appeal No. 916 of 2019 decided by D.B. of Allahabad High Court on 31.05.2018. The Special appeal was filed against the order dated 08.04.2009 passed by Single Judge in Writ Petition No. 2412 of 2000 holding O.M. dated 05.05.2003 issued by Department of Personnel and Training, Ministry of Personnel , Public Grievance and Pension, Government of India (DOPT) is irrational, unreasonable and Voilative of Article 14 and 16 of Constitution of India in so for as it laid down sealing of three years for offering compassionate appointment. The aforesaid O.M. dated 05.05.2003 Reads as under:-
"The undersigned is directed to refer to Department of Personnel Training OM No. 14014/6/94-Estt (D) dated Oct. '9 1998 and OM No. 14014/ 23/99-Estt (D) dated Dec. '3, 1999 on the above subject and to say that the question of prescribing a time limit for making appointment on compassionate grounds has been examined in the light of representations received, stating that the one year limit prescribed for grant of compassionate appointment is often resulting in depriving genuine cases seeking compassionate appointments, on account of regular vacancies not being available, within the prescribed period of one year and within the prescribed ceiling of 5 % of direct recruitment quota.
It has, therefore, been decided that if compassionate appointment to genuine and deserving cases, as per the guidelines contained in the above Oms is not possible in the first year, due to non-availability of regular vacancy, the prescribed Committee may review such cases to evaluate the financial conditions of the family to arrive at a decision as to whether a particular case warrants extension by one more year, for consideration for compassionate appointment by the Committee, subject to availability of a clear vacancy within the prescribed 5 % quota. If on scrutiny by the Committee, a case is considered to be deserving, the name of such a person can be continued for consideration for one more year.Page No.11
The maximum time a person's name can be kept under consideration for offering Compassionate Appointment will be three years, subject to the condition that the prescribed Committee has reviewed and certified the penurious condition of the applicant at the end of the first and the second year. After three years, if compassionate appointment is not possible to be offered to the Applicant, his case will be finally closed, and will not be considered again.
The instructions contained in the above mentioned Oms stand modified to the extent mentioned above.
The above decision may be brought to the notice if all concerned for information, guidance and necessary action."
16. In the aforesaid case the D.B. said in para 6 :-
"6. We have gone through the O.M. and find, when a candidate is not offered appointment, his name is carried forward for next year since quota is only 5 percent for compassionate appointment out of direct recruitment quota. A fresh review of financial status of family is taken and then again, for next year same exercise is repeated. We find it difficult to convince ourselves with any such analogy that such exercise should continue till appointment is given. There has to have some ceiling at some point of time and we find that two reviews in case of a candidate are genuine, reasonable and if a candidate's financial status is found to be sound or that he has been denied appointment due to non availability of vacancy and has survived, then such candidate cannot be continued in the wait list for unlimited period or for longer than a reasonable period. What should be a reasonable period, it is for the Department or Employer to decide as a matter of policy. Considering entire policy of compassionate appointment in question we do not find any such thing which may be said to be vesting A, an arbitrary discretions. Court normally does not interfere with a policy decision unless probably it is arbitrary to hold that ceiling limit of three years provided/ prescribed by department concerned is unreasonable or arbitrary is difficult to accept. Whether offer of appointment in the category of compassionate appointment shall be carried forward for three years or more is well within the domain of policy making body of concerned Department /Corporation. Besides, we do not find circular/policy in any manner irrational."Page No.12
After mentioning the various Judgments, the D.B. set aside the judgment passed by single judge and said that there is nothing wrong or arbitrary and irrational in the instructions as contained in the scheme. In paras 15 and 16 the D.B. said :-
"15. On the question of interference of Court regarding fixation of cut-off date and inference in the policy decision of Government and Department, settled legal position is that Courts are not to decide as to what should be cut-off date and as to what should be time limit for a particular benefit to be offered under a particular scheme.
16. We may consider it from this angle as well that O.M. which has been placed before us and which is quoted herein above, that department itself has been considerate enough in case of compassionate appointment by bringing in enhancement of time limit from one year to three years. In totality of scheme, we find that there is nothing wrong or arbitrary and irrational in the instructions as contained in the scheme."
17. In Suraj Pratap case, O.A. No. 830 of 2017 decided on 09.07.2019 (Supra), the Single bench of CAT , quoted the above para 6 and 16, than said in paras 7 and 8 :-
"7. Based on the OMs and the law laid down by the Hon'ble High Court in the case of FCI (supra), it is clear that respondents are bound to consider the case of an applicant for compassionate appointment for two more consecutive years, therefore, the application is to be considered for three consecutive years in total. In the present case it is nobody's case that the case of applicant was considered on more than one occasion only. Applicant has also challenged the impugned order on the ground that the weightage points have not been correctly calculated by the respondents.
8. Therefore, irrespective of the fact that the application was considered and rejected, it was obligatory upon the respondents to consider the application for two more consecutive years, which however, the respondents failed to do so. In the facts and circumstances of the case, it is clear that the respondents failed to discharge their duty to consider the application for two more consecutive years. Accordingly, Page No.13 the case is remitted back to the respondents to consider the case of the applicant for two more consecutive years as per the OMs and the policy of the respondents -department and dispose of the matter by way of reasoned and speaking orders with intimation to the applicant. Applicant would be liberty to file representation with respondent No. 2 as to in what manner, the weightage points have been miscalculated within a period of ten days from today. OA is accordingly disposed off. No order as to costs."
18. Therefore it appear that O.M. dated 05.05.2003 was the base of passing the order in O.A. No. 830 of 2017 decided on 09.07.2019 (Supra). But, one important fact is missing. The Single Bench of Allahabad High Court by order dated 08.04.2009 passed in W.P. No. 2412 of 2000, quashed the O.M. dated 05.05.2003, while the D.B. set-aside the order of Single Bench and held that nothing wrong or arbitrary and irrational in the said O.M. The Single bench of CAT passed the Judgment dated 09.07.2019 in O.A. No. 830 of 2017 (Supra) upon the basis of aforesaid O.M. and Judgment of D.B. It appear from above all Judgment and orders that a subsequent O.M. dated 26.07.2012 issued by "Department of Personnel and Training, Ministry of Personnel, Public Grievance and Pension, Government of India (DOPT)" was neither placed nor considered by the D.B. The O.M. dated 26.07.2012 Read as :-
"Subject:- Review of three years time limit for making compassionate appointment.
The primary objective of scheme for compassionate appointment circulated vide O.M. No. 14014/6/94-Estt(D) dated 09.10.1998 is to provide immediate assistance to relieve the dependent family of the deceased or medically retired Government servant from financial Page No.14 destitution i.e. penurious condition. The Hon'ble Supreme Court in its judgment dated 05.04.2011 in Civil Appeal No. 2206 of 2006 filed by Local Administration Department vs. M. Selvanayagam @ Kumaravelu has observed that "an appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependents and the financial deprivation caused to the dependents as a result of his death, simply because the claimant happened to be one of the dependents of the deceased employee would be directly in conflict with Articles 14 & 16 of the Constitution and hence, quite bad and illegal. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind".
2. This Department's O.M. No. 14014/6/ 1994-Estt. (D) dated 09.10.1998 provided that Ministries/Departments can consider requests for compassionate appointment even where the death or retirement on medical grounds of a Government servant took place long back, say five years or so. While considering such belated requests it was, however, to be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the Government servant in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. Therefore, examination of such cases call for a great deal of circumspection. The decision to make appointment on compassionate grounds in such cases was to be taken only at the level of the Secretary of the Department/Ministry concerned.
3. Subsequently vide this Department's O.M. No. 14014/19/2002-Estt. (D) dated 5th May, 2003 a time limit of three years time was prescribed for considering cases of compassionate appointment. Keeping in view the Hon'ble High Court Allahabad judgment dated 07.05.2010 in Civil Misc. Writ Petition No. 13102 of 2010, the issue has been re-examined in consultation with Ministry of Law. It has been decided to withdraw the instructions contained in the O.M. dated 05.05.2003.
4. The cases of compassionate appointment may be regulated in terms of instructions issued vide O.M. dated 09.10.1998 as amended from time to time. The onus of examining the penurious condition of the dependent family will rest with the authority making compassionate appointment."
Page No.15
19. Therefore it is found that the O.M. dated 05.05.2003(supra) was in existence at the time of Judgment dated 08.04.2009 passed by Single Bench but at the time of passing the Judgment by D.B. on 31.05.2018, the O.M. dated 05.05.2003 was not is existence because that was already withdrawn vide O.M. dated 26.07.2012 (supra).
20. Therefore at present the O.M. dated 05.05.2003(supra) is not in force w.e.f. 26.07.2012, hence no benefit can be given to the applicant upon the basis of order dated 09.07.2019 passed by single bench of this tribunal in O.A. No. 830 of 2017 "Suraj Pratap S/o Late Rajendra Singh vs. Union of India etc."
21. Another judgment dated 11.08.2023 passed in O.A. No. 319 of 2018 "Vivek Singh Vs. Union Of India" also cited by the Applicant. In Para 10 and 11, the bench observed and directed as under:-
"10. As the facts of the case have already been stated above in detail, the same are not reiterated for the sake of brevity. It is evident from record that case of the applicant was considered by the committee formed for considering the cases of compassionate appointment and just because the applicant secured relatively less merit points, he could not be granted the benefit of compassionate appointment. However, it is also evident from record that the case of the applicant was considered only for once and impugned order was passed thereby rejecting his claim. Having heard both the parties, considering the facts and circumstances of the case and specifically taking into account the current states of the applicant's family, I am of the considered opinion that it would be in the interest of justice that the case of the applicant be considered afresh. Accordingly, the instant original application is liable Page No.16 to be partly allowed to the extent that the competent authority amongst the respondents may be directed to reconsider the case of the applicant as and when the committee for considering the cases of compassionate appointment sits again.
11. Accordingly, in light of the facts and circumstances of the case, the instant original application is partly allowed. It is made clear that the applicant's case shall be considered afresh strictly taking into account the rules and regulations prescribed in the subject matter. The outcome of the said meeting shall be communicated to the applicant within two weeks thereafter without fail."
22. The aforesaid direction is not based upon any case law or O.M., therefor does not having any binding effect. At present it is not mandatory that every case for compassionate appointment should be considered for three consecutive years.
23. Therefore, in view of this court, no any sufficient grounds are found to interfere in the impugned order. The applicant only gets 32 points, which are rightly allotted to him and he was not entitled to get compassionate appointment.
24. It is also transpires from the record that the date of birth of the deceased employee was 09.10.1954 and he expired on 05.10.2014. As per the calculation sheet, only 25 days were left for his service, therefore, the maximum period of service was completed. The applicant was 28 years old at the time of filing the application but his elder brother was 39 years old and it cannot be said that the elder brother was non earning member. Page No.17 The family pension of Rs.2650+ DA was also sanctioned and the terminal benefit of Rs.27,35,711/- was also granted to the family of the applicant. Therefore, looking to the object of the compassionate appointment the case of the applicant is not a fit case to grant the compassionate appointment.
25. Hence, the OA is liable to be dismissed. Therefore, OA No.412/2013 is liable to be dismissed. Accordingly, the OA is dismissed. If any MAs are pending till today that shall be treated as disposed of.
26. No order as to costs.
(Justice B.K. Shrivastava) Member (J) Sushil Page No.18