Central Administrative Tribunal - Mumbai
Ramsing Ramkrishan Kodli &Amp Anr. vs M/O Defence on 27 February, 2019
i OA No. 75/2018 CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAT BENCH, MUMBAT ORIGINAL APPLICATION No.75/2018 Dated this the 20 day of February, 2019 CORAM: R.N. SINGH, MEMBER (JUDICTAL) lL. Ramsing Ramkishan Kodli, Age 55 years, Medically Retired as Auto Fitter in MT, Section, R/o Otr. No.27/226, Type-It, Subhash Nagar, Ordnance Factory Estate, © Bhusawal 425 203. 2. Leena Ramsing Kodli, Age 30 years, R/O Otr. No.27/226, Type-II, subhash Nagar, Ordnance Factory Estate, Bhusawal 425 203, Applicants. (Advocate Shri Vicky Nagrani ) C Versus. & i. Union of India, Through The secretary, Ministry of Defence, North Block, New Delhi-11i0001. 2. The general Manager, Ordnance Factory Bhusawal Bhusawal 425203, Respondents (Advocate Shri R.R. Shetty ) Reserved on : 13.02.2019 Pronounced on 5 27: 02-2019 2 OA No.75/2018 ORDER Per : R.N. Singh, Member (J)
The .applicants have filed MA No.101/2019 for permission to file the OA jointly and M.A.No.100/2018 for condonation of delay in filing the present OA. Heard. M.A.No.101/2019 for permission to file OA jointly is allowed for hE reasons given in the MA and keeping in' view no objection from the learned counsel for the respondents. MA No.101/2019 for condonation of delay is also allowed as the delay is of 35 days only and the reasons given in para 2 of the MA appear to be good and sufficient.
2. The Applicant has approached this Tribunal.
Ye under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs;
"I>, This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same quash ana set aside the impugned order dated 06.08.2016 with ali consequential benefits.
(2), Phis Hon'ble Tripunad may further be pleased Eo direct the Respondents to grant Compassionate Appointment to the Applicant No.2 with all consequential benefits {3}, Cast of the Applicant be provided for.
Wy, 4 © 3 OR No. 75/2018 (4), Any other and further order a3 this Hon'ble Tribunal deems Fit in the nature and Circumstances of the case he Passed."
3. The brief facts of the case as contended on behalf of the applicants are that while working as Aute Fitter in MT Section, the applicant no. suffered an attack of brain hemorrhage and paralysis and was declared unfit for service w.e.f. 18.04.2009. "the applicant at that time having four dependents, Smt. Laxmi Kodli (wife), leena Kodli (daughter) about 23 years, Tejabsingh Kodli (Son) about 21 years and Komal Kodli (Daughter) about 19 years. After declaring the Applicant Now unfit on medical grounds his son namely Tejabsing Ramsing Kodli was appointed on compassionate grounds as CMD in MT Section vide order dated 69.02.2011 (Annexure A-4). However, he committed suicide on 28.12.2014 due to some mental problems. The copy of Death Certificate is enclosed at (Annexure A-5) to this original application. The sudden demise of the only son of the applicant, who was appointed on compassionate ground left the family with destitute condition, argues the learned counsel for the applicants.
4 OA No.75/20184, Tt is stated that elder daughter got married and has one daughter aged about 4 years. AS the martial relations with her husband were not smooth hence they decided to take divorce, Accordingly, petition for divorce by mutual consent was filed in the Family Court, Bhusawal. The divorce decree was passed on 20.04.2018 as such she is also dependent on her father an presently residing with her father at Bhusawal. The applicants receiving a nominal pension of Rs.5000/- per month and no one else except the applicant no.2 is in the family to look after the applicant not and his wife. There is no. other i source of income of the family of the applicants. The applicants states that they have Submitted. letter dated 07.03.2014, 22.07.2015 and 25.08.2015 requesting therein for appointment of Km.Komal on compassionate grounds but unfortunately she had also expired. Thereafter, the wife of Applicant No.1 through a Legal Notice "dated 18.06.2016 {Annexure A-7} through her Advocate demanded therein for appointment on compassionate grounds in favour of her daughter Smt.Leena Ramsing Kodli.
The same was rejected by the respondents vide
a) 5 OA No. 75/2018 order dated 06.08.2016 on the grounds that Smt. Leena Ramsing Kodli- 1.€ Applicant No.2 is married and as per DoPT OM dated 16.01.2013 scheme for compassionate appointment is applicable only to dependent family member who is wholly dependent on the Govt. servant at the time of his death in harness Or retirement on medical grounds as the case may be but Smt.leena Ramsing Kodli ( 4 Applicant No.2) was not dependent at the time of his death.
5. Hence, aggrieved by the order of Respondent, rejecting the claim of the applicant for grant of compassionate appointment to her daughter, the present OA has been filed.
6. The learned counsel appearing on behalf of the respondents contested the Claim of the applicant by filing a detailed Counter reply wherein it has been stated that the present case is filed seeking compassionate appointment for Applicant No.2. ft is submitted that after declaring Applicant No.1 until on medical grounds, his son Tejabsing was éppointed on compassionate grounds on 09.02.2011. He committed suicide on 28.02.2014, Thereafter, wife of the applicant no.l \ 6 OA No.75/2018 moved applications seeking compassionate appointment in favour of her younger daughter Miss.Konal Ramsing Kodli. Thereafter, Applicant No.l sent a Legal Notice through her Advocate seeking compassionate appointment of her elder daughter Smt.Leena Ramsing Kodli, the applicant no.2 herein as Miss.Komal Ramsing Kodli expired on 04.06.2016. They have stated that compassionat() appointment cannot be claimed as oa matter of right. As per Ordnance Factory" tnéeriey ies dated 17.08.2009, "Compassionate appointment after the demise/retirement on medical grounds of the Govt. servant, may be provided to one dependent family member of the Govt. servant, as a one-time rigsSure and the right for appointment on compassionate \ ground on account of retirement of Shri R.R. Kodli now ceases to exist. Moreover, Shri.T.R. Kodli was an unmarried government servant at the time of his death. 'Hence, the applicant i.e. smt . Leena Ramsingh Kodli, who was married at the time of his death cannot be treated as dependent family member and hence, appointment on compassionate ground cannot be granted to her.
a a 7 OA No. 75/2018 Fe i have gone through the O.A. along with "Annexures A-1 to A-8 accompanying the O.A, a. i have also gone through the Reply filed on behalf of the respondents, along with Annexure R~l and R-2 annexed thereto.
9. t have heard the learned counsels on behalf of the applicants and respondents and have. considered the facts and 'circumstances and law points involved in the case.
Findings
10. At the outset, the respondents are also well within their rights to consider the case of applicant as per the policy and it does not create any statutory right to the applicant. The Hon'ble Supreme Court in the case of General Manager, SBI and Anr. v. Anju Jain { (2008) 8 SCC 475}, has held that appointment on compassionate grounds is not a right. However, the scheme of compassionate appointment is an exception and the same is to be provided strictly in accordance with the terms and conditions of the scheme. This apart, the son of the ex-employee namely Tejabsing Ramsing Kodli was also appointed on compassionate ground. This being "
8 OA No. 75/2018the factum, no further consideration is required in this OA as per the Ordnance Factory Instructions dated 17.08.2009, "Compassionate appointment after the demise/retirement on medical ground of the Govt. servant, may be provided to one dependent family member of the government servant, as a one-time measure. In view of the © above the right for appointment on compassionate Yee ground to Smt.Leena Ramsing Kodli dose not arise. The concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of service rules. That being so, it needs little emphasis that th scheme or the policy, as the case may be, is binding both on the employer and the employee. the philosophy behind giving compassionate appointment is just to help the family in harness to get over the immediate crisis due to the loss of sole breadwinner. This category of appointment cannot be claimed as a matter of right after certain period, when the crisis is Over. More so, the financial status of the family is also to be 9 OA No. 75/2018 looked into as per the scheme framed by the employer while giving compassionate appointment and such appointment cannot be conferred contrary to the parameters of the scheme.
il. The Hon'ble Supreme Court in the case of Santosh Kumar Dubey v. State of U.P. & Ors. {2009 (6) SCC 481}, held that the scheme is meant to provide immediate financial assistance to family which has lost its bread winner and request for compassionate appointment should be proximate to employee's death and compassionate appointment is not a bonanza or another source cf recruitment, and it cannot be claimed as a matter of right.
12. The Hon'ble Supreme Court in State Bank of India v. Raj Kumar, (2010) 11 SCC 661, elucidating the nature of the cheme of compassionate appointments observed: "It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the a "a 10 OA No.75/2018 -. Selection process. The dependants of employees, who die in harness, do not have any special claim Or right to employment, except by way of the concession that may be extended "by the employer under the rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only co. "© scheme framed by the employer for such émployment and there is no. right whatsoever outside such scheme.
13. The Hon'ble Supreme Court in the case of Local Administration Department € Anr, "Ss. M, Selvanayagam @ Kumaravelu, Civil Appeal No.No.2206 OF 2006 decided on under:-
"Tt has been said a number of times earlier but it needs to he recalled here that under the scheme of compassionate appointment, in case of an employee dying in harness one of his eligible dependents is given a job with the sole objective to provide immediate Succour to the family "which may suddeniy find itself in dire straits as @ result of the death of the bread winner. An appointment made Many years r f after the death of the employee or without que consideration of the Financial resources available to his/her dependents and the financial deprivation caused to the adependents as 05.04.2011 has observed ay
14. ii OA No. 75/2018 @ result of his death, simply becaus 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."
% In another decision in the case of Jagdish Prasad v. State of Bihar (1996) 1 secc 307 the Hon'ble Supreme Court has observed as under:-
15. of Haryana and Ors. reported in JT 1994/3)8C 525 he it has nw
3. .f€ is contended for the appellant that when his father died in harness, the appeiliant Was minor; the compassionate circumstances continue to subsist even tildd date and that, therefore, the court is required tO examine whether the apocintment shauld be made on compassionate grounds, We are afraid, we cannot accede to the contention. The very object of appointment of a dependant of t deceased employees who die in Harness is to relieve unexpected immediate hardship and distress caused to . the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled tO be appointed after -he attained majority long thereafter. In other words, if that contenticn is accepted, bt amounts to another mode of recruitment of the dependent of a deceased government servant which cannot be encouraged, de hors the recruitment rules.
4. The appeal is ~accordingly dismissed."
In the case of Umesh Kumar Nagpal v. State been observed that the whole object of 12 OA No. 75/2018 granting compassionate appointment is to enable the family to tide aver the sudden crisis and to relieve the family of the deceased from financial destitution and to help it to get over the emergency. Relevant portion of the Said judgment is reproduced below:-
"The whole object of - granting compassionate employment is tea enable the family to tide over the sudden ~ crisis. The object is not to. give a . member of such family a past much less @ post for. post held by the deceased, What. is further, mere death of an employee in harness does not entitle his family toe such source of livelihood. The Government or the Public authority concerned has to examine the financial condition of the ot family of the deceased, and it is only if it is satisfied, that but for the Provision of employment, the family will not be able to meet the crisis that a job is to he offered to the eligible member of the family. The posts in Classes ITI and IV are the lowest posts in non-manual and manual © categories and hence they alone can be effered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency, "
16. In the case of Sanjay Kumar vs State of Bihar And Ors reported in 2000 (SCC) (7) 192 the Hon'ble Supreme Court has observed as under:-
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* We are unable to agrees with the submissions of the Jearned senior counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis
17. DLT-746 the Hon'ble Delhi L3 OA No.75/2018 resulting due toa death of the bread earner who had left the family in penury and without any means of liveliheod. In fact such a view has beén expressed in the very decision cited by the petitioner in. Director of Education & Anr, vy. Pushpendra Kumar& Ors. Supra. ft is also Significant to notice that on .the date when the first application was made by the Petitioner on 2.6.88, the petitioner was a minor and was not. eligible for appointment, This is conceded by the petitioner. fhere cannot be. reservation of 4 vacancy tiil such time as the petitioner becomes a major after a number of years, unless there is some Specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief.
We are, therefore, unable to agree with the view expressed in Chandra Bhushan's case.
For the reasons stated above, we hold that there are no merits in this SLP and the same is accordingly dismissed."
In the case of Municipal Corporation of Delhi Vs. Shri Vir Mohd. Reported in 94 (2001) as under:-
DB pee) "Ed, rhe Supreme Court ha pronounced against entitiement fo appointment on compassionate grounds a a right. Such employment has a specifi Purpose, that is, to tide over a sudden tragedy, where an application' is filed ty Ow five years after 'the death, the suddenness of the demise disappears and hence there is no warrant Or justification for violating the equalities guaranteed under Articles 14 and 16 of the Constitution, Quite obviously, if the family could;have subsisted for five years it could continue to do so in the future also.
ft is necessary to appreciate the High Court has observed 14 OA No. 75/2018 distinetion between a delayed application by the Petitioner, which in view of the observations 'of the AEX Court, would defeat e request; and a Claim or demand for Compassionate appointment, which is unjustified in law; and a timely application that has been kept pending for a very tong time where the request is otherwise justified in that the death was sudden and early in the career of the deceased and the bereaved family is, in a 'penurious state, a delay in deciding the application would not defeat the Tequest. In fact Courts should be quick to direct the Managements to take a decision on ail applications expeditiously. Since the Petitioner's request for compassionate appointment had been "deferred at the Petitioner's request with the purpose of enabling him to attain majo Ority, it had become stale as held in Jagdish Prasad's case (supra). In these circumstances the impugned Award is co ntrary to law and must, therefore, be set aside. The Award is accerdingly set aside. The C.w.P. No. 7694/99, stands, allowed accordingly.
42. In CWP, 22/2000 the family income was such as would place the Petitioner and the family of the deceased well above the poverty line. fhe Scheme, reproduced above, correctly requires eight considerations to be fully considered; before compassionate appointment can be granted. All th hese considerations are legaliy valid and Salutary, and in conformity with the Pronouncements of the Supreme Court., Since compassionate appointment runs counter to the equality of employment guaranteed bo ail citizens, the Management, appears to have taken the cerrect decision in declining the request of the Petitioner keeping the family income and assets in Perspective. ft ads also significant that the déceased-father of the Petitioner died shortly before he would nave otherwise superannuated. The jaim for compassionate appointment is, therefore, wholly unjustified, y) L5 OA No. 75/2018 i3..0n Facts -- ag well as in law Nagendra Sahni's case jis meritless, fF feel compel ied Eo impose atieast nominal costs in the hope of discouraging unjustified ditigation, if not in the sanguinea hope of arresting avarice, CLW.P. No, 422 f 2000 is dismissed with costs quantified at Rs.1000.00. IF desist From awarding these costs to the $.S.T because of its financial Strength, The -- cost be deposited in favor oa the Delhi Legal Services Authority, Patiala House, New Delhi within four weeks.
id, The W.P.No.422/2000 is accordingly dismissed,"
18. From the facts referred above, it is crystal clear that on being declare until on medical ground, the family of the applicant is (consisting of him, his wife, two daughters and one son) was granted compassionate appointment.
The son unfortunately committed suicide on 28.12.2014. The younger daughter had died and the elder daughter the applicant no.2 herein was married and hence, neither depended on the applicant no.l nor his deceased son.
19. In view of the discussions made above in relation to the facts of the case as well as the legal precedents settled by the Hon'ble Supreme Court and Hon'ble High Court, IT am of the opinion that the scope of compassionate appointment is At yin se 16 OA No. 75/2018 restricted to the terms and conditions of scheme itself and the same cannot be Stretched by the Courts, SO as to provide appointment on compassionate ground. This apart, the delay is also a vital factor. The scheme of compassionate appointment cannot be granted after a reasonable period. Such being the consistent view of ".
Hon'ble Supreme Court in respect of the scheme, the grounds raised in this OA deserve no. further consideration. Further, the strong case made out by the respondents does not permit this Tribunal to allow the OA as no ground of discrimination, mala fides, arbitrariness or illegality, stands established by the applicant.
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20. Accordingly, the OA stands dismi However, there shall be no order as to costs.
c\ (R.N. Singh) Member~J amit/-