Central Administrative Tribunal - Ernakulam
Sareena S P vs The Administrator Union Territory Of ... on 16 February, 2024
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.181/00102/2019
Friday, this the 16th day of February, 2024.
CORAM:
HON'BLE Mr. JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Mr. K.V.EAPEN, ADMINISTRATIVE MEMBER
1. Sareena S P, Aged 30 years, D/o Late Kasmi M M
Serpalam House, Chetlat Island, Union Territory of
Lakshadweep- 682 554.
2. Ayshabi, Aged 48 years, W/o Late Kasmi MM
Serpalam House, Chetlat Island, Union Territory of
Lakshadweep- 682 554.
- Applicants
[By Advocate: Mr.Ajit G Anjarlekar]
Versus
1. The Union Territory of Lakshadweep represented by the
Administrator, Kavaratti Island, Union Territory of
Lakshadweep- 682 555.
2. The Administrator of the Union Territory of Lakshadweep,
Kavaratti Island, Union Territory of Lakshadweep-682 555.
3. The Secretary (Services), Administration of Union Territory of
Lakshadweep, Secretariat, Kavaratti-682 555.
4. The Director (Services), Administration of Union Territory of
Lakshadweep, Secretariat, Kavaratti-682 555.
O.A No.102/2019 2
5. The Central Scrutiny Committee on Compassionate
Appointments represented by the Director (Services), Union
Territory of Lakshadweep, Kavaratti-682 555.
6. Mohammed Muhsin M, S/o Late Kidave T B, Aged 32 years,
Makket House, Androth Island, Union Territory of
Lakshadweep-682 551.
7. FasilaBanu L, D/o Late Bambathi, Aged 28 years, Lavanakkal
House, Androth Island, Union Territory of Lakshadweep-682 551.
8. Mohammed Nishad Khan K K, S/o Late Badarudheen, Aged 2
years, Kolikkat House, Androth Island, Union Territory of
Lakshadweep-682 551.
9. Rafeetha M, D/o Late Hamzakoya K K, Aged 23 years
Kandadiakkal House (Manniyam), Amini Island, Union Territory
Lakshadweep-682 552.
10. Mohammed K, S/o Late Sayed Mohammed M, Aged 43 years
Kunhali House, Androth Island, Union Territory of
Lakshadweep-682 551.
11. Ashraff PV, S/o Late Cheriyakoya B, Aged 40 years, Puthiya
Veedu, Kavaratti Island, Union Territory of
Lakshadweep-682 555.
12. Mirzad C, S/o Late Ibrahim V I, Aged 27 years, Chamayam House,
Kadmat Island, Union Territory of Lakshadweep-682556
13. Yousef N C. S/o Late Kidave V P. Aged 46 years, Nellikechetta
House, Amini Island, Union Territory of Lakshadweep-682 552.
O.A No.102/2019 3
14. Shahida U P, D/o Late Sayed Mohammed Koya C N, Aged 31
years, Ummathabiyyapura, Androth Island, Union Territory of
Lakshadweep-682551.
15. Mohammaed Yasarudheen, S/o Late Muhammed Haneefa C P,
Aged 28 years, Manavattiyoda House, Chetlat Island, Union
Territory of Lakshadweep-682 554.
16. Kunhibi B C, D/o Late Aboosala K C, Aged 32 years, Baliyachada
House, Amini Island, Union Territory of Lakshadweep-682 552.
17. Mohammed Rafeeq K P, S/o Late Kasmi P. Aged 30 years,
Kannipura House, Chetlat Island, Union Territory of
Lakshadweep- 682 554.
18. Mohammed Roshan KIN, S/o Late Cheriyakoya A M. Aged 23
years, Kakkaillam Nalakam House, Kalpeni Island, Union Territory
of Lakshadweep- 682 557.
19. Attakoya PP. S/o Late Sayed Mohammed Koya, Aged 47 years,
Puthiya Padippura House, Amini Island, Union Territory of
Lakshadweep-682 552.
20. Abdul Razak K M. S/o Late Mohammed N, Aged 45 years.
Kailemmakada House, Kadmat Island, Union Territory of
Lakshadweep-682 556.
21. Sajeef K K., S/o Late Zabeer MI, Aged 40 years, Konjamkakkada
House, Kalpeni Island, Union Territory of Lakshadweep-682 557.
22. Mohammed Abdul Gafoor B. S/o Late Nalakoya T, Aged 31 years,
Bappathiyoda House, Androth Island, Union Territory of
Lakshadweep-682 551.
O.A No.102/2019 4
23. Noushad Beegum TP. S/o Late Pookunhi Koya KK, Aged 30 years,
ThattampokkadaHouse, Androth Island, Union Territory of
Lakshadweep-682551.
24. Jouhara B P, D/o Late Shajahan K, Aged 21 years, BungalaPura
House, Kiltan Island, Union Territory of Lakshadweep-682 558.
25. Mohammed Ramees Shuhasad A, S/o Late Attakidave U P,
Aged 20 years, Athanachammada House, Kavaratti Island, Union
Territory of Lakshadweep-682 555.
26. Jamhar Hussain, S/o Late Abdul Khader K V,Aged 42 years,
Beeranthoda House, Kavaratti Island, Union Territory of
Lakshadweep-682 555.
- Respondents
[By Advocates: Mrs. Sreekala K.L., SPC for R1 to R5
Mr.Lal K Joseph for R6-R11, R15, R16, R18, R19,
R21 to R26]
The application having been heard on 09.11.2023, the Tribunal
on 16.02.2024 delivered the following:
ORDER
Justice K.Haripal The 2nd applicant is the mother of the 1st applicant. The father of the 1st applicant and the husband of the 2nd applicant, Sri.M.M.Kasmi had passed away on 11.11.2005. He was a primary school teacher in Chetlat school. The applicants are aggrieved by non- extending of the compassionate grant appointment scheme to them, O.A No.102/2019 5 especially to the 1st applicant, who had made the application on 04.07.2015. She is a Graduate with B.Ed.
2. According to the applicants, after the death of Kasmi, on 26.10.2007 the 2nd applicant had filed an application for compassionate ground appointment, but that was not forwarded to the Service Department till 10.04.2008. By the time it was forwarded, date for submitting and scrutinising the application had expired and hence the case of the 2 nd applicant could not be considered in the process that taken place on 13.03.2008 and 14.03.2008. At that time the 1st applicant was a minor. Kasmi had passed away leaving his wife and three minor children including a son, who is 90% mentally disabled. Though the 1st applicant had filed a representation for compassionate appointment on 04.07.2015, that was considered and rejected by the respondents on the ground that she did not acquire benchmark points for recommending her case for appointment under the compassionate appointment scheme.
3. According to the applicants, the method adopted by the respondents in rejecting the application of the 1 st applicant is O.A No.102/2019 6 erroneous. They have raised mainly three grounds for challenging the Annexure-A5 decision of the respondents. Firstly, the case of the 2 nd applicant was not considered in time. If her application for compassionate appointment was considered, she would have obtained appointment in 2008 and that would have been sufficient for eking out livelihood for the entire family including three minor children. Non-consideration of the application has caused them untold miseries and hardships. As her application was ignored illegally, the application submitted by the 1 st applicant, her daughter should be given preference. Secondly, the case of the 1 st applicant was considered and rejected by the respondents based on Annexure- A7/R1(a) scheme, which is also erroneous. The income of the family was not appropriately considered. At the time of death of Kasmi in 2005, neither the applicants nor Kasmi had possessed any landed property. Using the terminal benefits of Kasmi the 2 nd applicant had purchased a small plot of land, in which a small house was built up. But that has also been reckoned the as the asset of the applicants. O.A No.102/2019 7 Moreover, they have also reckoned the value of the properties possessed by the joint family of Kasmi, over which he did not have any independent right. They challenge the clause in Annexure-A7 which permits reckoning of joint family property as well, while assessing the assets of the deceased. According to the applicants, value of the undivided tharawad property of Kasmi should not have been reckoned. He being a male member of the tharawad, he did not have independent right over the property. On his death, his right, if any, has reverted back to the tharawad over which his legal heirs have no claim.
4. Thirdly, the applicants have a clear case that the 2 nd applicant was not awarded marks according to the predicament in which they have put in. The said Kasmi is survived by a son, who is 90% mentally retarded. However, that aspect has not been considered on the plea that in Annexure-A7 a mentally retarded girl child alone is entitled to get consideration. Such a discrimination is illegal and violative of Article 14 of the Constitution; therefore that part of Annexure-A7 is also sought to be quashed.
5. Thus, according to the applicants, the application given by O.A No.102/2019 8 the 1st applicant for compassionate appointment was illegally rejected by the respondents. Thus Annexure-A5 is sought to be quashed and a direction is sought against the respondents to reconsider the application given by the 1st applicant and to direct them to include her in the list of candidates to be appointed as Multi Skilled Employee.
6. There are 26 respondents in the O.A. Respondents 1 to 5 are the officials and respondents 6 to 26 are the persons, who are included in the top of Annexure-A5 list, who are likely to be appointed under the compassionate appointment scheme. The applicants have a definite case that those who are placed above her are not entitled to be considered in preference to her, whose predecessors had died much after the death of Kasmi on 11.11.2005. Still they have been placed above the 1st applicant, which is illegal.
7. Respondents 1 to 5 in their reply have disputed the claim of the applicants. According to them, the application given by the 1 st applicant was considered strictly in accordance with Annexure-A7 and appropriate marks were awarded to her following the point based criteria. At first a provisional score sheet was published in terms of O.A No.102/2019 9 Annexure-A7/R1(a) and objections were called for. The objections were meticulously considered by the committee. The objections raised by the 1st applicant were rejected and Annexure-A5 was published clearly following Annexures-R1(a) to R1(c). As her name came lower down in the merit list, the Administration is not in a position to appoint her. Therefore, the contentions raised by the applicants have no basis.
8. Respondents 6 to 26 also filed detailed reply denying the contentions of the applicants. According to them, there are other persons also included in the final list published by the official respondents. In the nature of the contentions raised by the applicants, such other persons are also necessary parties, since they are not arrayed, the O.A. is bad for non-joinder of necessary parties.
9. Moreover, according to them, appointment under the compassionate appointment scheme is only a concession, which does not confer any vested right. The application given by the 1 st applicant was considered in accordance with the laid down guidelines. There are no anomalies as highlighted by the applicants in the scheme. It O.A No.102/2019 10 was also found that points were awarded strictly in accordance with the laid down principles. The applicants have immovable properties. Moreover, a mentally retarded son is not entitled to get any extra point, whereas he cannot stake claim in the light of Article 15(3) of the Constitution.
10. The applicants filed a detailed rejoinder and also an additional rejoinder and also produced additional documents. Thus Annexures-A1 to A17 were marked on the side the applicants.
11. We heard the learned counsel for the parties in great detail.
12. The learned counsel for the applicants as well as the learned counsel for the party respondents have filed detailed argument notes also.
13. It is not in dispute that Kasmi, a primary school teacher, the father of the 1st applicant and the husband of the 2 nd applicant had passed away while in service on 11.11.2005. He was a teacher in a primary school in Chetlat island. He is survived by wife and three children, two girls and a boy. The boy is mentally retarded and it is O.A No.102/2019 11 certified that he is suffering from 90% severe mental retardation. At the time of death, all the children were minors, the elder, the 1 st applicant, was only 15 years old. Thereafter, she acquired degree and also B.Ed qualification. While she moved application for compassionate appointment on 04.07.2015, she was married and had a child. The younger daughter is also a Graduate. It is also pointed out that apart from the family pension received by the 2 nd applicant, they do not have any independent source of income.
14. It is also not disputed that, earlier on 26.10.2007, the 2 nd applicant, the widow, had filed a representation seeking compassionate appointment, which was submitted to the Headmaster of the primary school, where Kasmi was working for onward transmission. But he sat over it and forwarded to the Secretariat only on 10.04.2008. By the time, the date for submitting/scrutinising applications for compassionate appointment was over, so that it could not be placed before the committee which considered the applications on 13.03.2008 and 14.03.2008. Thus such an application could not be O.A No.102/2019 12 processed at all and a golden opportunity was denied to them.
15. As mentioned earlier, one of the grounds in which the applicants have moved this Tribunal is the non-consideration of the application given by the 2nd applicant on 26.10.2007. So, according to them, the illegal non-consideration of the application, which was submitted on time caused them considerable prejudice and has resulted in serious civil consequences to the family. Submission of such a representation seeking compassionate appointment on 26.10.2007 is not denied by the respondents. Admittedly, that representation was forwarded by the Headmaster only on 10.04.2008, after about six months, so that it was not placed before the committee which considered the applications on 13.03.2008 and 14.03.2008 for filling up the vacancies for the period 2007-2008 in compassionate appointment scheme. That means, the said application given by the 2nd applicant was never processed. However, according to them, that will not give any leverage to the 1 st applicant since she did not get benchmark points when the application submitted by her on O.A No.102/2019 13 04.07.2015 was considered in the light of Annexure-A7/R1(a) guidelines.
16. After hearing counsel on both sides and considering various materials placed before us, it leaves no room for doubt that the implementation of the compassionate ground appointment scheme in Lakshadweep was in a very pitiable state, before issuing Annexure-A7/R1(a) guidelines. It is unfortunate that despite the DoPT's guidelines issued way back in 1998 insist that the department/organisation shall earmark 5% of vacancies occurring every year in Group-C or Group-D categories for compassionate ground appointment, it was not followed in the island. The scheme of 1998 is applicable to all Departments and the Union Territories. But the respondents did not follow the same in right spirit. The respondents have not reckoned such vacancies. The ramification of such lapses cannot easily be understood. It has very serious civil consequences on the family of an eligible dependent of a Government servant, who died in harness. It is the admitted case of the O.A No.102/2019 14 respondents that the 2nd applicant had given a representation for compassionate appointment on 26.10.2007, as claimed by them. But that did not reach the Service Department in time. It is shown that vacancies under the compassionate appointment scheme for 2007- 2008 were assessed and eligibility was considered on 13.03.2008 and 14.03.2008. But the application was forwarded to the Secretariat only after scheduled date for consideration, and naturally, the application given by the 2nd applicant went unnoticed and the family missed the opportunity. Inaction or negligence was committed by the officers of the respondents, for which the cost paid by the applicants was huge.
17. After evaluating the materials on record, we find that the applicants could establish that serious injustices were done to the applicants and members of their family atleast twice. If the application given by the 2nd applicant had reached the competent authority at the appropriate time and was accepted, that would have been a solace to the bereaved members of the family. But the Headmaster of the school took his own time to forward it to the Service Department. O.A No.102/2019 15 There is negligence on the part of the Headmaster. The resultant loss caused to the family cannot be compensated in terms of money. All the same, it is idle for the applicants to say that, that damage should be repaired by giving preference to the application given by the 1 st applicant on 04.07.2015.
18. After 2008, such an exercise was not done by the respondents. From their own version it is clear that after 2008, process of filling up compassionate appointment vacancies were tried only in 2018, after the issue of Annexure-A7/R1(a) guidelines. Naturally, when there was huge gap in filling up the vacancies for over 10 years, there must have been pressure from different quarters. Applications must have been accumulated. Even now we cannot forget that the number of vacancies occurring in a year under the scheme is only 5% in Group-C and Group-D vacancies. At the same time, there must be large number of aspirants the queue must be long. Here the 1st applicant had given her representation on 04.07.2015, even then it was not considered in appropriate time, but O.A No.102/2019 16 was prolonged till considering the applications under Annexure-A7. That means, on both occasions, that is when the 2 nd applicant had given her application in 2007 and when the 1 st applicant had filed her application in 2015, the applications were not considered in time in accordance with the guidelines which existed at the appropriate time. Both these lapses have caused considerable prejudice to the interests of the applicants.
19. There was a contention that the 1st applicant did not file any application in time. But as rightly pointed out by the learned counsel for the applicants, the administration never had followed up a schedule for filling up the limited number of vacancies occurred in the compassionate appointment stream on year war basis. After 2008, when 2007-2008 vacancies were reportedly filled up, such an exercise was undertaken only in 2018. Even then, we have reasons to think that the case of the 1st applicant was not considered appropriately. Atleast for two reasons, we feel that the consideration of the application given by the 1st applicant was faulty.
20. Firstly, the definite case of the applicants is that the O.A No.102/2019 17 respondents were not justified in taking the value of the assets of the applicants as Rs.15,36,630.71. According to them, they did not have any property, that the joint family property or tharawad property of Kasmi should not have been taken into consideration in view of the special custom prevalent in Lakshadweep. As a member of tharawad, he did not have any definite share in the property, he being a male member had only right of maintenance, that the house building and small plot were acquired by the 2 nd applicant using the terminal benefits of her husband and therefore that also is not liable to be reckoned; reckoning its value would result in duplication of the value. They have also sought to quash point No. III(iv) of Annexure-A7, which is contrary to the custom prevalent in Lakshadweep islands. Therefore, that part of Annexure-A7 is sought to be quashed and thus the points awarded by the respondents is incorrect and erroneous.
21. After considering the rival contentions and materials, we find considerable force in this argument. The guidelines postulate awarding of points on various attributes/parameters and the O.A No.102/2019 18 candidates getting maximum points become eligible for consideration. Clause III(iv) of Annexure-A7 indicates that the point based criteria has to be taken including 'value of movable/immovable property in the name of the deceased Government servant or any of his/her dependent or joint property of the family in the case of joint family since responsibility of taking care of the family of the deceased Government servant rests with all members in the joint family'.
22. It is important to state at the outset that all these matters should be reckoned as on the date of death of the Government servant. Annexure-A2 ownership certificate and Annexure-A3 sale deed obtained in favour of the 2nd applicant indicate that such a property was purchased by her on 13.04.2007 much after the death of Kasmi. The ownership certificate indicates that 330 Sq.Meters of land comprised in survey No.86/7 in Chetlat island was owned by Ayshabi as per document No.5/2007, Annexure-A2. Even though the party respondents wanted to say that there is no material to say that such a property was acquired in the name of the 2nd applicant using the O.A No.102/2019 19 terminal benefits, it is practically improbable to prove anything to show the source of purchasing the property. But this aspect has not been disputed by the official respondents. In this connection, Annexures-A15 and A16 assume very relevant. Both these documents show that both Kasmi and Sareena, the 1 st applicant have no landed property in their name. Similarly, there is no contention that the 2 nd applicant had any independent source of income on the date of death of her husband. Therefore, in all probability, it is not necessary to disbelieve this claim of the applicants that such a small bit of land, where they had put up a residential building, was acquired using the terminal benefits obtained by the widow and children after the untime demise of Kasmi.
23. It is also important to say that the respondents have no case that the applicants had any other source of income. They have also stated that they did not own any landed property or independent source of income apart from the salary of Kasmi and after his demise the only source of income is the family pension received by the 2 nd O.A No.102/2019 20 applicant. They were residing along with their kith and kin, that they did not possess any land or property prior to the purchase made under Annexure-A3.
24. There cannot be any doubt that when we take notice of the peculiar nature of custom and way of life prevalent in Lakshadweep islands, such a contention cannot be thrown overboard.
25. Customary Marumakkathayam Law is prevalent in Lakshadweep islands. It is a known fact that the tharawad system is prevalent in the community. Broadly, there are two types of properties in Lakshadweep, they are joint family property and self acquired property. Chetlat forms part of Aminidivi group of islands. There, joint family property is known as 'Friday property' or 'Velliazcha swoth'. It is subject to Marumakkathayam, uncodified customary law. Inheritance is only through female line. The hallmark of a tharawad joint family property is that it is impartible, it is inalienable also. Allocation of such property among thavazhies or branches of tharawad is for the maintenance of the members of the joint family alone. In other words, the tharawad property is normally not partible and the O.A No.102/2019 21 right of males is confined to take usufructs for their sustenance. After death of a male member, their right will revert back to the tharawad. In other words, the legal heirs of a male member has right of inheritance in tharawad property. This is in sharp contrast to self acquired properties or 'thinkalazcha swoth' or 'Monday properties'. As the name suggests, it is the self acquisition of a person, which is inheritble subject to Muhammadan law of succession. It is partible in contrast to the 'Friday property'. In the decision reported in Buhari Koya and others v. Kasimkoya Haji and others [ILR 1979 (1) Kerala 730], where this restriction has been clearly mentioned. A copy of the said decision has been produced by the applicant as Annexure-A10. In the said decision, the Hon'ble High Court has extracted with approval Gazetteer of India, Lakshadweep by N.S.Mannadiar published in 1977 which deals with property and inheritance in the islands, which reads thus:
"Property in the islands is either ancestral or self acquired. Ancestral property is known as Velliazhcha (literally Friday property) pronounced as Belliazhcha in the Amindivis. Self O.A No.102/2019 22 acquired property is known as Thinkalazhcha (literally Monday property) on the Laccadives and Belasha on the Amindivis.
Ancestral or Tarwad property is governed by the Marumakkathayam law of inheritance prevalent on the Kerala coast. However, there is no codified law and the practices are governed by customs which differ from island to island. Broadly speaking, property right descends through the female line, the male members having only right for sustenance during their lifetime. The property is enjoyed by the joint family, consisting of brothers, sisters and sister's children. The children are not entitled for any share in the joint family property of their father. The property is managed by the eldest male member known as Karanavan. He is responsible for the upkeep of the trees in the land and for effecting improvements to the Tarwad properties. He can mortgage the Tarwad property for debts incurred and can also repay debts from the income therefrom. He has, however, no right to alienate or sell any portion of the joint family property..........."
26. This custom has acquired the force of law. Courts of law have consistently approved the custom. The above decision has been followed in numerous other judgments of the Hon'ble High Court.
27. In other words, if it is a joint family or tharawad property, O.A No.102/2019 23 impartibility and inalienability are the Rules. Annexure-A14 document produced by the applicants clearly indicates that Kasmi did not have any property of his own. In that way, it is not known as to how the respondents could reckon his share in tharawad property while applying points, by considering the application for compassionate appointment by the 1st applicant.
28. Moreover, it is the settled proposition that no member of a tharawad is entitled to deal with his right in the property. Execution of a gift deed which violates the established custom is illegal. (See the decision in Mariyomma v. Kidave [2005 (2) KLT 654]). In this decision it has been held that Velliazcha properties are tharawad properties and it cannot be gifted away by the head of the family. That means, no member of the tharawad is entitled to deal with the tharawad property as his own, violating the established custom of the island. What we wanted to drive home is the point that in Annexure-A7 III (iv) while dealing with value of property, value of the joint family property, if it is tharawad property, should not have been reckoned. This is in O.A No.102/2019 24 total violation of the Customary Marumakkathayam Law in force in Lakshadweep islands. Any literature on the subject will reiterate this proposition. In this connection, in 'Traditional Futures: Law and Custom in the Lakshadweep Islands' an authoritative study by Sri.V.Vijayakumar, the term 'attaladukkam' or reversionery right has been explained in the following terms:
"We have already seen that the property in the islands is classified into Friday property and Monday property. The important distinction between the two lies in the power of disposal. The owner can dispose of Monday property as he wishes. It devolves on his personal heirs according to Islamic law. So the Monday property is inherited by the wife and children of the owner. But no branch tharawad or thavazhi can alienate or otherwise dispose of the Friday property belonging to the tharawad without the concurrence of the other members of the tharawad. When a branch becomes extinct owing to the death of its last member without legal descendants, its property reverts to the members of the main tharawad. If the last surviving member of the branch tharawad wished to alienate the tharawad properties, he had to obtain the consent of the Maranavakasis (reversioners). This particular right of the O.A No.102/2019 25 Maranavakasis is known as attaladukkam."
29. To put it in other words, a tharawad property in the Lakshadweep island is not ordinarily partible. A male member, at the most, has only right of maintenance from the income of the property and therefore it was totally illegal to reckon its value for the present purpose. Such a clause in Annexure-A7 contravenes the Customary Marumakkathayam Law in force in Lakshadweep islands. Therefore that part of the specification in Annexure-A7 is liable to be quashed. We do so.
30. The applicants also have questioned the vires of clause III
(ix) of Annexure-A7 which says that the applicant having physically handicapped/disabled dependent daughter(s) will get extra points. In other words, as rightly pointed out by the learned counsel for the applicants, if only the applicant has a dependent disabled daughter, he/she would get an additional point. Here, Annexure-A4 document clearly indicates that the brother of the 1st applicant Sarfras is suffering from mental retardation of 90%. Such a distinction made between O.A No.102/2019 26 male and female with regard to mental retardation or permanent disability is violative of Article 14 of the Constitution of India. Even though Article 15(3) of the Constitution states that there is nothing that shall prevent the State from making any special provision for women and children, it operates in a totally different field.
31. In Anuj Garg and others v. Hotel Association of India and others [(2008) 3 SCC 1], the Apex Court has observed thus:
"..............The makers of the Constitution intended to apply equality amongst men and women in all spheres of life. In framing Articles 14 and 15 of the Constitution, the constitutional goal in that behalf was sought to be achieved. Although the same would not mean that under no circumstance, classification, inter alia, on the ground of sex would be wholly impermissible but it is trite that when the validity of a legislation is tested on the anvil of equality clauses contained in Articles 14 and 15, the burden therefore would be on the State. ........."
That means, the distinction drawn in Annexure-A7 needs to be explained by the State. But no attempt has been made by the official respondents to justify such a differentiation made between a male and O.A No.102/2019 27 female handicapped/disabled dependent.
32. It is also relevant that when a provision is challenged as violative of Article 14, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it and having ascertained the policy and object of the Act, the Court has to apply dual tests, whether the classification is rational and based upon an intelligible differentia which distinguished persons or things that are grouped together from others and that are left out of the group and whether the basis of differentiation has any rational nexus or relation with its avowed policy and objects (see the decision in K.R.Lakshman v. Karnataka Electricity Board [AIR 2001 SC 595].
33. Power of classification is always there with the State. Differential treatment does not per se constitute violation of Article
14. It denies equal protection only when there is no reasonable basis for the differentiation. In K.R.Lakshman, quoted supra, it is further held that there must be nexus between the basis of classification and the object of the legislation.
34. In Municipal Committee, Patiala v. Model Town Residents O.A No.102/2019 28 Association [AIR 2007 SC 2844] the Apex Court held that if the Government fails to support its action of classification on the touchstone of the principle whether the classification is reasonable having an intelligible differentia and a rational basis germane to the purpose, the classification has to be held as arbitrary and discriminatory.
35. After an anxious consideration of the principles governing the field, we are of the view that the respondents went wrong in discriminating a disabled male dependent. Male or female, such a disability is congenital. It is not traceable to the sex of the person. Irrespective of the gender the world over has accepted the obligation of the society to remove any discrimination against persons with disabilities the sharing of development benefits vis-a-vis non-disabled persons. With this clear intent, we have seen two specific legislations, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 followed by the Rights of Persons with Disabilities Act, 2016. The avowed principle of both the statutes are to O.A No.102/2019 29 create barrier free environment for persons with disabilities.
36. Unfortunately, serious contentions raised by the applicants on these aspects have not been even touched in the reply of the official respondents. They have not tried to explain how such a differentiation would be justified. Such a classification runs against the settled principles of law.
37. As far as the guardian is concerned, it makes no difference. A disabled dependent creates a life long responsibility and additional obligation to take care of. There is no sense in making any such classification, denying the benefits to the guardian of a male disabled.
38. Here when clause III(ix) of Annexure-A7 was incorporated, there is absolutely nothing to show that, that was done consciously with a specific intention bearing Article 15(3) in mind. In our considered opinion, such a differentiation, granting benefit only to dependent daughters leaving out a mentally retarded male clearly violates the salutary provisions in Article 14 of the Constitution and therefore, we feel that clause III(ix) of Annexure-A7 also is liable to be interfered with.
O.A No.102/2019 30
39. To sum up, we hold that the provisions in clause III(iv) and
(ix) of Annexure-A7 cannot stand judicial scrutiny. While the total value of the property was taken it was illegal to take the value of the undivided tharawad property of Kasmi. Moreover, the mental retardation of a male child also should have been reckoned. When we interfere with these provisions, as a necessary corollary, the matter should go back to the respondents 1 to 5 for considering the case of the applicants once again in the light of these observations.
40. The learned counsel for the party respondents has highlighted that there is delay in submitting the application by the 1 st applicant. According to him, even though Kasmi had died on 11.11.2005, the 1st applicant had filed her application only on 04.07.2015, which should not have been entertained.
41. We have no doubt that, ordinarily a delayed application seeking benefit under the compassionate appointment scheme should have adverse consequences. It is a matter of adverse presumption that the applicant under compassionate appointment who moves a belated application did not have necessity of getting employment O.A No.102/2019 31 assistance. But in Lakshadweep scenario, such a principle cannot be accepted. It is evident from various documents that even though guidelines were issued by the DoPT in 1998, that were never followed. As mentioned earlier, after some cases were considered during 2007- 2008, compassionate appointment scheme was tried to be implemented only in 2018, when Annexure-A5 order was passed. For the past ten years, such an exercise was put on hold. Even though the 1st applicant had moved her application on 04.07.2015, consideration of it was delayed and it was reckoned only after the implementation of Annexure-A7 scheme in 2018. In this connection, Annexure-A13 OM of the Ministry is also very important. Similarly, the learned counsel also has taken us through Annexure-A12 FAQ with regard to the clarifications issued on the implementation of the compassionate appointment scheme. Against point No.26, it is stated that 'a compassionate appointment application can be carried forward to the next years, but total compassionate appointment made in a year should not exceed 5%'. Similarly, the clarification sought against point O.A No.102/2019 32 No.38 is as follows:
"Is there any time limit for considering a case for compassionate appointment?"
In answer it is stated:
"Subject to availability of a vacancy and instructions on the subject issued by this Department, as amended from time to time, any application for compassionate appointment can be considered without any time limit subject to the merit of each case ....."
42. That means, even though there are decisions by the Hon'ble Supreme Court that a belated application should not be considered, because the employment assistance is to tide over the immediate indigency of the family occurred due to the sudden demise of the breadwinner and intended to give financial succor. But in Lakshadweep circumstances, when the Administration was not at all diligent enough to implement the scheme on an year war basis, such an argument cannot sustain.
43. Moreover, it is relevant to note that the official respondents have no case that the 1st applicant had filed the application belatedly. That is the practice followed by in Lakshadweep O.A No.102/2019 33 Administration. The Administration never implemented the scheme on regular basis. The case of the 2nd applicant was not considered at all due to the negligence and lapses on the part of the head of the school, where Kasmi was working. The application filed by the 1 st applicant was considered after eight years. Annexure-A5 clearly indicates that the cases considered were much worse. As rightly pointed out by the learned counsel for the applicants, the first five cases in Annexure-A5 related to the death of officials in 2007, 2005, 2006, 2006 and 2007 respectively. Against such deaths, applications were filed on 14.09.2009, 06.03.2009, 15.02.2012, 07.04.2014 and 07.08.2014 respectively. That means, the practice being followed in Lakshadweep administration was that they used to entertain belated applications and therefore the case of the 1 st applicant that they filed belated application cannot be adversely presumed.
40. It was also astonishing to hear the learned counsel for the applicants that in Lakshadweep any dependent of a deceased Government employee could make application under the O.A No.102/2019 34 compassionate appointment scheme only when applications were called for. If that is correct, it is something running against the very purport and object of the scheme. Any how, Annexure-A7 does not make any provision for calling for applications. It also states about considering the applications in an year war basis. It may be possible that before 2018 practice of calling applications may be prevalent. Any how, it was against the very scheme. Whatever it may be, the delay in submitting application by the 1st applicant cannot be taken as a big issue, because that was the Rule being followed at that point of time. It is only hoped that this kind of follies shall not be repeated in future.
Resultantly, the case of the 2nd applicant cannot be considered here; there is no substance in the argument that owing to the non- consideration of her application in time, preference should be given to the 1st applicant, her daughter. But there is substance in the contention that clause-III(iv) of Annexure-A7 is running against the principles of Law of Customary Marumakkathayam followed in Lakshadweep islands. Similarly, discrimination shown to a mentally O.A No.102/2019 35 retarded male dependent of a Government servant also is illegal and unconstitutional. Therefore, they are liable to be quashed. Resultantly, the points awarded to the 1 st applicant in Annexure-A5 is erroneous. Annexure-A5 is quashed to the extent of the marks awarded to the 1st applicant. Clauses III(iv) and III(ix) in Annexure-A7 are also quashed and the respondents 1 to 5 are directed to consider the case of the 1st applicant again, within a period of three months from the date of receipt of a copy of this order. We make no order as to costs.
(Dated, this the 16th February, 2024)
K.V.EAPEN JUSTICE K.HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ds
O.A No.102/2019 36
List of Annexures
Annexure A5:- A true copy of the relevant part of the notice dated
14/11/2018 issued by the 5th respondent
Annexure A7:- A true copy of the office order dated 23/03/2018
issued by the 4th respondent
Annexure A10:- A true copy of the Order dated 02/01/2019 issued by the 4th respondent Annexure A1:- A true copy of the certificate dated 03/01/2007 issued by the Additional Sub Divisional Officer, Chetlat Annexure A2:- A true copy of the Ownership Certificate dated 13/02/2008 issued by the Sub Divisional Officer, Chetlat.
Annexure A3:- A true copy of the relevant part of Document No:5/2007 dated 13.04.2007 with English translation of the relevant portion Annexure A4:- A true copy of the Disability Certificate dated 19/04/2013 bearing No: 494/13 Annexure A6:- A true copy of the details of the relevant part of the representation and decision dated 13/11/2018 Annexure A8:- A true copy of the representation dated 26/11/2018 submitted by the applicant before the 4th respondent Annexure A9:- A true copy of the Notice dated 01/01/2019 issued by the 2nd respondent O.A No.102/2019 37 Annexure R1(a): True copy of the letter F.No.A-12012/1/2018-Estt-UT-
LKS/1160 dated 23.3.2018 Annexure R1(b): True copy of the corrigendum dated 1.6.2018 Annexure R1 (c): True copy of the office order 1.6.2018 Annexure R1(d): True copy of the notice F.No.A-12012/2/2018-Estt-UT-
LKS(Pt.1) dated 18.9.2018 Annexure A10: A true copy of Judgment dated 28/07/1978 by the Honourable High Court of Kerala in S.A No: 590 of 1974.
Annexure A11: A true copy of F.No.A- 12012/2/2018-Estt-UT-LKS (1) dated 26/03/2018 issued by the Director (Services) (without Annexures).
Annexure A12: A true copy of Frequently Asked Questions on Compassionate Appointment dated 30/05/2013 issued by the Department of Personnel and Training vide DoP& T No.1401/02/2012- Estt. (D).
Annexure A13: A true copy of Office Memorandum dated 29/07/2016 issued by the Department of Expenditure, Ministry of Finance vide No.1-5/2016-1C.
Annexure A14: A true copy of message through email dated 30.06.2016 sent by the Principal, Government Senior Secondary School, Chetlat to the Director of Education, Kavaratti.
O.A No.102/2019 38Annexure A15:- A true copy of the Certificate dated 17/03/2022 issued by the Block Development Officer, Chetlat Island vide F.No.9/7/2022- SDO (CHT) Annexure A16:- A true copy of the Certificate dated 17/03/2022 issued by the Block Development Officer, Chetlat Island vide F.No.9/7/2022- SDO (CHT) Annexure A17: A true copy of the relevant extract of the service book of the deceased employee **********