Central Administrative Tribunal - Jabalpur
(1) Gaurav Prasad Dubey vs The Comptroller And Auditor General Of ... on 18 February, 2016
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH CIRCUIT SITTING: GWALIOR (1) Original Application No. 202/00308/2015 (2) Original Application No. 202/00309/2015 (3) Original Application No. 202/00310/2015 (4) Original Application No. 202/00311/2015 Gwalior, this Thursday, the 18th day of February, 2016 SHRI UDAY KUMAR VARMA, ADMINISTRATIVE MEMBER (1) Original Application No. 202/00308/2015 (1) Gaurav Prasad Dubey, Aged years, S/o Late Shri Narayan Prasad Sharma R/o 43 Riverview Colony, Morar, Gwalior (M.P.) 474006 -Applicant (By Advocate Shri Alok Katare) V e r s u s
1. The Comptroller and Auditor General of India, 10-Bahadurshah Jafar Marg, New Delhi-110001
2. The Principal Accountant General (Civil) and Commissioner Accounts Exam Audit Bhawan, Gwalior (M.P.) 474002 -Respondents (2) Original Application No. 202/00309/2015 (3) Original Application No. 202/00310/2015 (4) Original Application No. 202/00311/2015 (2) Mukesh Savita, S/o Late Shri Naval Kishore Savita, Age: 39 years Occupation Educated Unemployed, R/o B-989, Anand Nagar, Near Bada Park, Bahodapur, Gwalior (M.P.) 474012 -Applicant in OA 202/00309/2015 (3) Rajiv Sagar, S/o Late Shri Amarlal Sagar, Age: 32 years, Occupation Educated Unemployed, R/o Ekata Colony Sikandar Kampoo, Ajaypur Road, Gwalior (M.P.)474001 -Applicant in OA 202/00310/2015 (4) Kamaljeet Singh Jadon S/o Late Shri Kaptan Singh Jadon, Age 31 years Occupation Educated Unemployed, R/o Shivajee Nagar, Aamkho Pahadiya, Pani ki Tanki Ke Pass, In front of Parvati Convent School, Laskhar Gwalior (M.P.) -Applicant in OA 202/00311/2015 (By Advocate Shri Jitendra Sharma in above three OAs) V e r s u s
1. Comptroller and Auditor General of India, 9 Deen Dayal Upadhyay Marg, New Delhi PIN 110124
2. Accountant General (G. & SSH) Audit Bhawan, Jhansi Road, Gwalior M.P. 474002
3. Senior Deputy Accountant General (Admn.), Office of the Accountant General (G & SSA) M.P. Audit Bhawan, Jhansi Road, Gwalior M.P. 474002 -Common respondents in OAs Nos.202/00309, 310 & 311/2015) (By Advocate Shri J.P. Saxena for respondents in all four OAs) (Date of reserving the order:16.02.2016) COMMON O R D E R Since the facts are materially identical and the issue involved is common, all these Original Applications are being disposed of by this common order. It is noticed that in case of applicant Gaurav Prasad Dubey, there was an earlier order of the Tribunal dated 24.07.2014 in Original Application No.282 of 2012, directing the respondents to consider his case. However, the order passed by the respondents even in this case had led to seeking the same relief.
2. For the purposes of this common order reference is being made to the facts pleaded and documents annexed with Original Application No.20/00309/2015, unless not specifically mentioned in the order.
3. In this Original Application following reliefs have been sought:
The impugned order Annexure A/1 may kindly be quashed with all consequential benefits and respondents be directed to provide compassionate appointment to the applicant on suitable post as per his qualification.
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4. The facts of the case as presented by the applicant are that the applicant, who is son of Naval Kishore Savita, applied for compassionate appointment, following the death of his father. An application was made on 14th February, 2008 by the wife of the deceased requesting that her son Mukesh Savita be given compassionate appointment and for which she has her full consent.
5. It is the contention of the applicant that the applicant was called for interview scheduled on 18.12.2012, 26.12.2013 and 19.12.2014. However, the respondents have rejected the said representation vide order dated 5.1.2015 on the ground of his marital status. It is the contention of the applicant that his case for compassionate appointment should not have been rejected on the ground of marital status as there is no prohibition in the rules against married applicants.
6. The respondents have filed a detailed counter reply and have quoted the provisions of the rules on compassionate appointment. They have said that the scheme of offering compassionate appointment does not envisage it as a matter of right and, therefore, cannot be claimed as such. They have explained in their reply that the applicant applied for compassionate appointment on 14.2.2008. There was no vacancy in the years 2008 and 2009 and on availability of the vacancies, the applicants case was considered in the years 2010, 2011, 2012, 2013 and 2014 by the Departmental Screening Committee (for brevity DSC), but DSC did not recommend the applicants case for compassionate appointment. They have placed before us proceedings of the DSC dated 09.12.2014 and the proceedings show that the case of the applicant Mukesh Savita was taken up for consideration by the committee, but his case was recommended for closure, on the ground that he is married and hence has ceased to be dependent on the deceased government servant. However, in addition to this ground, the applicants case was also evaluated in terms of Governments circulars in this regard on grounds of terminal benefits, remaining service of deceased employee, position of employment of family members, immoveable property, number of dependents, etc. and even on these counts, he was found ineligible and, therefore, his request for compassionate appointment was turned down.
7. During the course of arguments, the counsel for the applicant placed before me a decision of the jurisdictional High Court in Writ Petition No.1995/2015 (Bhagwant Rao Shithole Vs. Food Corporation of India & Ors) & in 12 other writ petitions, dated 17.7.2015, in which it has been held thus:
Resultantly, impugned order in all the writ petitions are set aside. Respondents are directed to consider the cases of the petitioners for compassionate appointment. Their cases cannot be rejected on the ground that they are married. If they are otherwise eligible, their cases be considered by respondents. The respondents shall take a decision on the pending applications of the petitioners within 90 days from the date of communication of this order.
8. In the light of the above judgment, the counsel for the applicant argued that the orders passed by the respondents are untenable. His prayer was that the case of the applicant should be remanded back to the respondents to consider afresh disregarding the marital status of the applicant.
9. I have given my thoughtful consideration to the issues raised by the applicant and the respondents in their written submissions as well as oral arguments.
10. I have also gone through the decisions relied upon by the counsel for the respondents in the matters of MGB Gramin Bank Vs. Chakrawarti Singh, 2013 (12) JT 81, Union of India and another Vs. Shashank Goswami and another, 2012 (5) JT 492, State of J&K and others Vs. Sajad Ahmed Mir, (2006) 5 SCC 766, Hindustan Aeronautics Vs. A.Radhika Thirumalai, (1996) 6 SCC 394 and Life Insurance Corporation of India Vs. Asha Ramchandra Ambekar, (1994) 2 SCC 718.
11. The basic question that needs adjudication here is whether on the basis of the minutes of the DSC, it can be held that the case of the applicant has been rejected solely on the ground of marital status. A superficial reading of the proceedings may create such an impression, because in paragraph 8, the committee has recorded that [A]fter detailed deliberation and evaluation of each candidate on parameters mentioned in para 5 above, the committee recommends closure of the following cases due to the reasons mentioned against their name and the reason mentioned against the applicant is He is married and hence has ceased to be dependent of the deceased Govt. servant. However, I also find from the proceedings that his case has been considered for evaluation under different parameters laid down in this regard. His case had been evaluated at serial no.3 and he had been awarded a total of 108 marks out of 200. Likewise, the cases of other applicants, namely, Gaurav Prasad Dubey (in Original Application No.202/00308/2015), Rajiv Sagar (in Original Application No.202/00310/2015) and Kamaljeet Singh Jadon (in Original Application No.202/00311/2015) were also considered by the very same DSC held on 09.12.2014 and the reason for recommending closure of their cases was also the same i.e. they are married and hence have ceased to be dependent on the deceased Govt. servants. Their cases had been evaluated at serial nos.17, 7 & 9 and they had been awarded a total of 110, 108 & 98 marks respectively out of 200. I also find from paragraph 2 of the proceedings which states that the Committee was informed that only one vacancy is available in the cadre of Clerk for compassionate appointment in the year 2014. Since in this background the person who had scored highest number of marks i.e. 144 is one Rahul Pal, the committee has recommended his name for one vacant post. While we are in agreement with the applicants that their cases should not have been closed solely on the ground that they were married particularly in the light of the jurisdictional High Courts decision in the matters of Bhagwant Rao Shithole (supra), it can not be denied that even if this ground i.e. their marital status was disregarded, they still would not have been offered an appointment, as only one vacancy was available with the respondents and many among those considered for this position had higher merit as evidenced by the evaluation sheet. In view of this fact, even if the cases of the applicants are remanded back to the respondents it is clear that the outcome is not going to change because as is evident from the proceedings the respondents have considered their cases on merits also. Since the number of vacancies is limited, in this case only one, therefore, the one who got the maximum marks was recommended for appointment. This is a case where invoking the Doctrine of useless formality seems appropriate.
12. The counsel for the respondents placed before me a copy of FAQs (Frequently Asked Questions) on compassionate appointment issued by the Department of Personnel and Training vide No.14014/02/2012-Estt)(D) dated 25th February, 2015 in which it has been clarified that married son can be considered for compassionate appointment, if he is otherwise eligible and fulfills the criteria, however, the cases of compassionate appointment already settled with reference to FAQ (Sl.No.13) dated 30.5.2013 that married son is not considered dependent on a Government servant may not be reopened. I do find some merit in this argument, mainly because the respondents are supposed to act in accordance with instructions given to them by the DOPT. Further, we have also noted that the applicants have in their Original Applications not challenged the provision that the cases of compassionate appointment settled before 25.2.2015 should not be reopened. It is a matter of fact that these cases belong to such a category. However, even if this argument is disregarded in the light of the orders of the jurisdictional High Court, the fact remains that the cases of the applicants have been evaluated by the committee also on merits. Therefore, even if the cases are remanded to the respondents, which is the prayer of the applicants, to disregard the aspect of marital status and consider the applicants cases de novo, on merit, it will yield no different outcome, as has been explained above.
13. In the light of the discussions made above, I am not inclined to interfere in this matter.
14. Accordingly, these Original Applications are dismissed. There will be no order as to costs.
(Uday Kumar Varma) Administrative Member rkv 6 Sub: compassionate appointment OAs Nos.202/00308/2015, 202/00309/2015, 202/00310/2015 & 202/00311/2015
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