Allahabad High Court
The Chief Commissioner Central Excise & ... vs Prabhat Singh & Another on 9 August, 2011
Author: Vineet Saran
Bench: Vineet Saran, Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.29 Civil Misc.Writ Petition No. 33452 of 2008 The Chief Commissioner, Central Excise and Customs, Lucknow and others. .............. Petitioners Vs Prabhat Singh and another .............. Respondents Hon'ble Vineet Saran,J.
Hon'ble Ran Vijai Singh,J.
Heard Sri B.K.Singh Raghuvanshi, learned counsel for the petitioners as well as Sri B.N.Pandey, learned counsel for the contesting respondent. Pleadings have been exchanged. With consent of learned counsel for the parties, this writ petition is being disposed of finally at this stage.
The father of respondent no.1 was an employee of the Central Excise and Custom Department. He died in harness in the year 1996. The respondent no.1 applied for appointment on compassionate ground, which application was kept pending, and when no decision was taken despite reminders by the respondent no.1, the respondent no.1 approached the Central Administrative Tribunal, Allahabad. His application was disposed of by the Tribunal in the year 2005 with the direction to decide his representation. On such representation having been rejected, the respondent no.1 challenged the same before the Central Administrative Tribunal, Lucknow Bench, Lucknow which has allowed the application of the respondent no.1 by the impugned order dated 14.3.2008. Challenging the same, this writ petition has been filed.
The Tribunal disposed of the original application of the respondent no.1 with the direction to consider the case of the respondent no.1 for appointment on compassionate ground in the grade of Tax Assistant on the availability of vacancy in that quota. This direction was given on the statement made by the respondent before the Tribunal (petitioner herein) which has been recorded in para 6 of the impugned order which is reproduced herein below :-
" As the respondents themselves say that they will consider the case of the applicant on availability of vacancy in the cadre of Tax Assistant, so it seems just and proper to direct them to reconsider the case of the applicant for compassionate appointment in the cadre of Tax Assistant on availability of vacancy in direct quota."
From the perusal of the same it transpires that the application having been disposed of by the Tribunal on the statement of the petitioners herein, normally no interference is called for by this Court. It is not the case of the petitioner that the aforesaid observation in the judgement of the Tribunal is not based upon the statement of the petitioner. However, it has been stated by Sri Raghuvanshi that the post of Tax Assistant is now to be filled up by promotion and, hence, no direct recruitment can be made on the said post. It is submitted that there was no post available in the quota of compassionate appointment, hence the appointment could not be offered to the respondent no.1. Sri Raghuvanshi however,could not make a positive statement that how many appointments have been given by the petitioners on the compassionate ground in the last few years. Further in view of the recent decisions of the Apex Court, after long lapse of time, no appointment on compassionate ground can be offered to the respondent as the financial crunch, which had fallen on the family of the deceased employee, must have been over by now and the claim of appointment would thus be a stale claim.
Refuting the submissions of Sri Raghuvanshi, learned counsel appearing for the respondent has submitted that the case of the respondent no.1 has never been considered at any point of time by the petitioners in right perspective as, when the respondent herein had initially applied for compassionate appointment, the respondents had not taken any action, which compelled the answering respondent to file O.A. No. 1459 of 2005 before the Central Administrative Tribunal which was finally disposed of on 08.12.2011 with the direction to the petitioner to decide the representation of the answering respondent by a speaking order. It is only thereafter the petitioner rejected the case of the answering respondent on the ground that the qualification for appointment on the Tax Assistant happens to be Graduate whereas the applicant was only Intermediate, and that otherwise also there was no vacancy against which the respondent could be appointed. In the submissions of learned counsel for the respondent, if there was no post of Tax Assistant available, what had prevented the petitioner to consider the case of the respondent for giving appointment on any post, other than the post of Tax Assistant, for which he was eligible so as to mitigate the hardship which had fallen on the family of deceased employee. In the submissions of learned counsel for the respondent, the petitioner has defeated the entire purpose of the provision for grant of compassionate appointment and thrown the respondent under continuous financial crunch, mental distress and agony. Now they have set up a case that the post of Tax Assistant is to be filled up by way of promotion and so far as the appointment on other posts are concerned, the petitioner contended that by now much water has flown and long delay has occurred, therefore, financial crunch, if any, which had fallen upon the family after the death of employee must have come to an end.
We have gone through the records of the writ petition as well as counter affidavit and considered the submissions of learned counsel for the parties. It is to be noted that the petitioner has brought on record the scheme launched by Government of India, Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training ) for compassionate appointment. The object of the scheme is to grant appointment on compassionate grounds to a dependant family member of a Government servant dying in harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood, so as to relieve the family of the Government servant concerned from financial destitution and to help it in order to get over the emergency. The scheme appears to be applicable to the dependant of the family member who dies while in service or is retired on medical grounds. Clause 2 (b) of the aforesaid scheme provides the zone of dependants of the family members which include number of relatives of deceased. The scheme also provides that the appointment can be made against direct recruitment quota on Group 'C' or Group 'D' post. With regard to eligibility, it is provided under the scheme that the family must fall under the category of indigent and deserves immediate assistance for release from financial destitution and that the applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules. Under Clause 6 exemptions have also been granted in making such appointment from recruitment procedure i.e., calling of names without the agency of the Staff Selection Commission or the Employment Exchange, clearance from the Surplus Cell of the Department of Personnel and Training/Directorate General of Employment and Training, the ban orders on filling up of posts issued by the Ministry of Finance ( Department of Expenditure). The upper age limit could also be relaxed wherever found to be necessary, but the lower age limit should, however, in no case can be relaxed below 18 years of age. Clause 7 of the aforesaid scheme deals with determination/availability of vacancies. For the purpose of this case we find that sub paras (e) & (f) of clause no.7 are very relevant which are reproduced below:-
"(e) Employment under the scheme is not confined to the Ministry/Department/Office in which deceased/medically retired Government servant had been working. Such an appointment can be given anywhere under the Government of India depending upon availability of a suitable vacancy meant for the purpose of compassionate appointment.
(f) If sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Ministry/Department/ Office to take up the matter with other Ministries/Departments/ Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list."
From the perusal of the scheme it transpires that the Union of India has issued very compact scheme for offering appointment on compassionate ground not limited to the dependant of deceased who died in harness but also extended it to the employees who have sought retirement on medical grounds. As has been noticed by us in the clause of eligibility, emphasis has been laid down that the family of the deceased employee must fall under the indigent category and deserves immediate assistance.
We have seen the order passed by the Commissioner, Central Excise Allahabad dated 05.01.2006 which was impugned in the original application filed before Central Administrative Tribunal, Lucknow Bench, Lucknow. The ground on which the petitioner's case has not been considered appears to be non availability of the vacancy and creation of new cadre of Tax Assistant after merger of L.D.C. and U.D.C. together and where the qualification for appointment on the post was prescribed as graduate. Further,that now this post can be filled up only by way of promotion. The Commissioner has also taken note of the letter of the Ministry of Finance being letter F.No. A-11019/72/99-Ad. IV dated 19.07.2001 which prohibited filling up of direct vacancies in various grades for the year 2001-2002 and directed filling up all such vacancies by promotion only.
We find that the scheme which has been launched by the Union of India provides exemptions under clause 6-A wherein it is provided that the compassionate appointments are exempted from observance of the ban orders on filling up the posts issued by the Ministry of Finance. The impugned order before the Tribunal contains that it is the Ministry of Finance which has imposed ban on filling up of the vacancies in various grades for the year 2001-2002 by direct recruitment. It is not clear whether in the recruitment rules, such amendment has been made that the posts, as noticed in the impugned order, can only be filled up by way of promotion and not by direct recruitment. It is settled law that unless the relevant rules are amended, any departmental circular cannot override/dilute the existing rules meant for holding selection by way of direct recruitment. In each and every department the promotional quota as well as direct quota are prescribed and in some rules there is a provision for a particular category of post which can be filled up only by way of promotion. This is not the case of the petitioner that the posts on which respondent is seeking appointment can only be filled up by way of promotion under the relevant rule. The case of the petitioner, as would appear from the perusal of the order dated 05.01.2006 impugned in O.A., is that Ministry of the Finance has imposed the ban whereas the scheme meant for the appointment on compassionate ground provides that such ban imposed by the Ministry of Finance will not be applicable in the case of the compassionate appointment.
It is also to be noted that in the entire order the respondent's eligibility for appointment, whether the family of the deceased fall under the category of indigent or not, has not been considered and the appointment has been ignored on the ground that there is no vacancy and further that there was a ban imposed by the Ministry of Finance and the qualification for appointment on the post of Tax Assistant is Graduate whereas the respondent was only Intermediate pass. Here it is also to be noticed that sub-clauses ' e ' & ' f ' of clause 7 the scheme for compassionate appointment are not confined to the Ministry/ Department/ Office in which deceased/medically retired government servant had been working. Such an appointment can be given anywhere under the Government of India depending upon availability of a suitable vacancy meant for the purpose of compassionate appointment. Further sub clause ' f ' provides that if sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Ministry/Department/Office to take up the matter with other Ministries/Department/Offices of the Government of India to provide at an early date appointment on compassionate grounds to those who are in the waiting list.
From the stand taken by the Union of India, either in the impugned order before the Tribunal or in the writ petition, it no where transpires that any such waiting list was ever prepared by the department with regard to providing appointment on compassionate ground and further any effort has been made to offer an appointment to the petitioner in other department under the Government of India in case the vacancy was not available in the Custom or Central Excise Department, as stand has been taken in the impugned order or in the counter affidavit.
In this back ground we are of the opinion that the respondents have acted very carelessly and in fact defeated the purpose to offer an appointment to a dependent of deceased employee who has given his blood and flesh while serving the department. In fact petitioners have not only frustrated the case of the respondent but they did not care to go through the object and purpose of the scheme meant for offering compassionate appointment to a dependant of the deceased, who died in harness, where various kind of exemptions have been granted i.e., an exemption from following the general procedure of the recruitment of service rules, relaxation of age limit, and further the ban imposed on the appointments etc. It is noticeable that on the one hand the petitioners have throughout been careless in considering the case of the petitioner and on the other hand when they have considered the same, it has been rejected on totally non existing ground.
However, there may be substance in the submissions of learned counsel for the petitioner that by now for appointment on the post of Tax Assistant qualification is graduate, but this qualification has been prescribed only after the merger of the cadre of U.D.C. & L.D.C. and not prior to that. Had the petitioner's case been considered prior to that he could fall under the eligibility criteria. Further the petitioners have not prepared any waiting list and washed off their hand by saying that no vacancy is available in the Central Excise and Custom Department. Whereas the relevant scheme provides that the appointment can be made in any other department under the Government of India. There is another aspect of the matter that if the respondent was not eligible to be appointed on the post of Tax Assistant, what had prevented the petitioner to consider the respondent for appointment on any other group ' C ' or group ' D ' posts to mitigate the hardship crept on the family of the deceased employee.
We are surprised to note that now the respondents are taking shelter of various decisions of Apex Court wherein it has been held that after a long lapse of time no appointment can be made on compassionate ground. We find from the perusal of the judgement that in that case default was not on the part of department therefore that case is distinguishable on facts. Here in this case as we have noticed the default is on the part of government in not considering the petitioner's case for compassionate ground well within time. While dealing with such matter where the delay or lapse was on the part of the employer, learned Single Judge of this Court in writ petition no. 11507 of 2006 - Surendra Prasad Gond vs Union of India and others decided on 27.11.2006 has observed as under:-
Although it is well settled by numerous decision of this Court as well as of the Apex Court that no appointment on compassionate ground be made after lapse of long time but in the present case it has to be examined whether on any kind of lapse,(long delay in appointment) may be, on the part of the respondents the appointment on compassionate ground can not be made. I am afraid that if the long lapse of time irrespective of lapse on whose part is taken into consideration for the purposes of ignoring the appointment on compassionate ground then it would lead to in justice as in each and every case the respondents may cause delay in considering the appointment on compassionate ground and then come with the case that long delay has occurred, therefore, it cannot be said that family is still in financial crunch and no appointment on compassionate ground be offered to the dependant of the deceased.
It is noticeable that this kind of appointment is offered to a person in exception of normal mode of recruitment of service. This is special kind of benefit extended by the ( legislator) employer in favour of the dependants of the deceased employee who had been serving in the department with the utmost devotion and contributed in the smooth working of the department. Like the duty of the disciplined parent to their dependants the employers are also supposed to behave/act, quickly, promptly and softly with the dependants of the deceased of their own department within four corner of law, where a person seeking appointment is in crisis after the death of the employee. Their act has to be transparent reasonable and prompt while considering this kind of matter. Otherwise the purpose of the legislature will be defeated. To my mind every care and caution as required under law has to be weighed and followed in its true prospective promptly without any delay.
While considering the aspect of long lapse of time, it has to be seen that during this long time how the family has survived. The distress, the pain, the misery and the mental agony which the family has faced during this time has also to be weighed by the authorities particularly in the circumstances where the lapse is on their part. Mere survival for a long time is not sufficient for the purposes of ignoring the appointment under dying-in-harness Rules. The survival is the law of nature, a person will survive irrespective of the fact whether he is employed or not. It is very often said that time and tide wait for none, it will pass away in its own way. There are many persons who are not in employment and without means even then they are surviving. To my mind, while considering this type of a problem the paramount consideration should be the following of law in its true, letters and spirit meaning thereby the quick and prompt steps has to be taken by the responsible persons under the Rules while considering the appointment under dying-in-harness rule. The delay in considering such appointment will defeat the purpose of the Rule and put the family of deceased in distress which is not the spirit of Rule and intention of the legislature ( the maker of the Rule).
Here it is to be noticed that the petitioner has throughout been litigating and keeping his claim alive. Lastly, by means of the impugned order in the writ petition the Tribunal has disposed of the original application of the petitioner with the direction to reconsider the case of the petitioner for compassionate appointment in the grade of Tax Assistant on the availability of vacancy in the quota of direct recruitment and in such reconsideration, the said impugned order will not come in the way.
Looking into this fact that now the post of Tax Assistant is to be filled up by way of promotion, the order of Tribunal is modified to the extent that the case of respondent no.1 shall now be considered by the petitioner in the grade of Tax Assistant or any other post falling in the quota of direct recruitment. The respondent no.1 shall be given appointment either in the department where his father was working or in any other department of Government of India, expeditiously, but not later than six months from the date of receipt of a certified copy of the order of this Court.
With the aforesaid directions the writ petition is disposed of.
Dt.09.08.2011
PKB
W.P. 33452-2008
(Ran Vijai Singh,J.) (Vineet Saran,J.)