Central Administrative Tribunal - Ernakulam
Amla R vs The Secretary Indian Audit And Accounts ... on 28 March, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/00731/2019
Tuesday, this the 28th day of March, 2023
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
Amla R., Aged 29 years, D/o. G. Appan
Aramam, KRA/A 40, Kuravankonam Market Junction
Kowdiar P.O., Thiruvananthapuram-695 003.
- Applicant
[By Advocate: Mr. P.Mohandas]
Versus
1) Union of India, Represented by the Secretary
Indian Audit & Accounts Department
New Delhi - 110 001.
2) The Accountant General (A & E) Kerala
M.G. Road, P.B.No. 5607
Thiruvananthapuram-695 039.
3) The Accounts Officer (Administration)
Office of the Accountant General (A & E) Kerala
M.G. Road, P.B.No. 5607
Thiruvananthapuram-695 039. - Respondents
[By Advocate : Mr. K.I.Mayankutty Mather]
The applications having been heard on 13.02.2023, the Tribunal
on 28.03.2023 passed the following:
O.A No.731/2019 2
ORDER
Applicant's mother, Radhamani passed away on 17.05.2010 while working as Accounts Officer in the office of the 2 nd respondent. Then the applicant gave Annexure-A4 request dated 11.06.2010 seeking compassionate appointment. By Annexure-A6 that application was rejected. That decision was challenged before this Tribunal in O.A.476/2012. But by Annexure-A7 order the Tribunal declined to interfere. Against that decision the applicant filed OP(CAT) 862/2013 before the Hon'ble High Court. By Annexure-A8 order the High Court quashed Annexure-A7 order and directed the respondents to consider the application of the applicant for compassionate appointment in accordance with the guidelines and schemes afresh, within a period of two months from the date of receipt of a copy of the judgment. Accordingly, the application was considered again and by Annexure-A9 order dated 22.08.2019 the applicant was informed that her request for compassionate appointment cannot be acceded to. Challenging Annexure-A9 order, the applicant has approached this Tribunal seeking to quash the same, seek a declaration that he is entitled to get appointment under the scheme and to direct the 2nd respondent to appoint the applicant under the compassionate appointment scheme. O.A No.731/2019 3
2. According to the applicant, the mother was the sole bread winner of the family. By the untime demise of the mother the family has fallen in worst financial condition. The mother is survived by the applicant, her elder sister and father. Elder sister, though employed in a bank, is married and living separate. Herself and her father have no means of earning. Their residential building was constructed by availing loan from the department, which is yet to be cleared. The mother had a chitty transaction with KSFE amounting to Rs.15 lakhs to be paid by the next five years. The funeral was conducted by pledging gold ornaments of the mother. Thus the family is in dire need of employment assistance. According to the applicant, it is the most genuine application which has been rejected arbitrarily and without giving an opportunity of being heard.
3. The Deputy Accountant General (Admn.) has filed a reply, on behalf of all the respondents, opposing the claim of the applicant. According to him, Annexure-A9 was passed after considering all relevant aspects. After the death of the mother, retirement benefits of Rs.14,17,720/- was disbursed to the family including gratuity of Rs.10,00,000/-, Rs.1,02,134/- towards CGEGIS and Rs.3,15,586/- towards encashment of leave. Apart from the above, a sum of Rs.10,83,162/- was also disbursed to the family as GPF balance. O.A No.731/2019 4 Moreover, the family pension of Rs.14,045/- has been authorised from 18.05.2010 to 17.05.2020 and thereafter at normal rates of Rs.8,427/-.
4. According to the respondents, on receipt of the application for compassionate appointment, the Welfare Officer of the respondents had conducted an enquiry regarding the financial position of the family. Thereafter, the Departmental Screening Committee considered all the aspects and rejected the claim since the family of Radhamani had received terminal benefits beyond Rs.14 lakhs. The report submitted by the Welfare Officer dated 13.08.2010 indicate that Radhamani is survived by her husband Sri.G. Appan, two daughters Smt.Arya R aged 24 years and the applicant aged 20 years. At the time of death of the mother, the elder daughter was unmarried and employed in a scheduled bank. Sri.Appan is a practising lawyer. The applicant was a student of LLB. The family was granted family pension of Rs.14,045/- with dearness reliefs besides terminal benefits of Rs.14,17,720/- and GPF balance of Rs.10,83,162/- were disbursed to them. They owned a building in 8 cents of land. The house was built by availing House Building Advance from the department, but at the time of death of the mother no liabilities were outstanding under the HBA. The husband O.A No.731/2019 5 had pledged ornaments for Rs.45,000/- to meet the funeral expenses. They had a chitty transaction of Rs.15 lakhs with the KSFE. However, the Screening Committee has observed that the chitty transaction for an amount of Rs.15 lakhs cannot be treated as a liability as in the case of bank loan. Even though she was not afforded an opportunity of personal hearing, the Screening Committee had considered all aspects as revealed through records including terminal benefits, the assets and liabilities and monthly income of the family, number of earning members, number of dependents, need and status of the family, etc. If the applicant had sought for personal hearing, that would have been allowed. Screening Committee had considered all aspects and found the applicant not eligible to be considered under the compassionate appointment scheme. Various authorities have also been cited in the reply supporting the contentions.
5. I heard the learned counsel on both sides. The learned counsel for the applicant submitted that even though the father of the applicant is a lawyer, he does not have regular practice or regular source of income, he was depending on the earnings of the wife. Even though the elder sister is employed, she is married and residing elsewhere and therefore the income of the sister cannot be reckoned O.A No.731/2019 6 for rejecting employment to the applicant. Relying on the decision in Govind Prakash Verma v. Life Insurance Corporation of India and others [(2005) 10 SCC 289] he said that compassionate appointment cannot be refused on the ground that any member of the family received amounts admissible under the Rules. According to the learned counsel, it is not disputed that funeral expenses were met by pledging the gold ornaments of the deceased. That being the financial status of the applicant, her application for compassionate appointment should not have been rejected. The counsel also pointed out that the family has a loan of Rs.15 lakhs in the KSFE. The counsel also relied on the decisions in Canara Bank v. Ajithkumar G.K. [(2019) KHC 871] and Canara Bank and another v. M.Mahesh Kumar [(2015) 7 SCC 412].
6. On the other hand, the learned Standing Counsel for the respondents said that on the death of the mother, who was holding Group-B non-gazetted post, the family received more than Rs.25 lakhs as retiral benefits. Moreover, the husband is drawing monthly family pension, more than Rs.41,000/-. The report of the Welfare Officer indicated that the family owns a building in 8 cents of land, that they have no liabilities outstanding under the HBA scheme. Regarding the chitty transaction with KSFE, amount more O.A No.731/2019 7 than Rs.15 lakhs was pending, but that is not a liability, it has to be treated as an investment. The decisions in Govind Prakash Verma and Mahesh Kumar, quoted supra, stand overruled by the Hon'ble Supreme Court in Central Bank of India v. Nitin in Civil Appeal No.5111 of 2022, dated 03.8.2022. The counsel also relied on the decisions reported in State of Himachal Pradesh and another v. Shashi Kumar [(2019) 3 SCC 653], Union of India and Another v. Shashank Goswami and another [(2012) 11 SCC 307] and Bharath Petroleum Corporation Limited and Others v. T. Padmakumari Amma [2007(1)KHC376]. According to the learned counsel, Shashank Goswami, quoted supra, is apt to the facts of this case. Now, by the revised guidelines issued by the Comptroller and Auditor General, a family member of a Group-B employee who got more than Rs.14 lakhs as retiral benefits is not entitled to be considered for compassionate appointment. According to him, the case of the applicant was considered in the light of the office memorandum dated 16.01.2013 issued by the Ministry of Personnel, Public Grievances and Pensions, (Department of Personnel and Training).
7. This is the second round of litigation. The mother of the applicant was an Accounts Officer, who died in harness on 17.05.2010. At that time, the applicant, who is the second daughter, O.A No.731/2019 8 was doing her LLB course. She gave Annexure-A4 application on 11.06.2010. By Annexure-A6 order dated 23.05.2012 that application was rejected. Aggrieved by the same, she moved O.A.476/2012. By order dated 28.01.2013 that O.A. was rejected, against which OP(CAT)862/2013 was filed. That OP was allowed and the respondents were directed to consider the application afresh. By Annexure-A9 dated 22.08.2019 the respondents again rejected the application and that made the applicant to move the Tribunal again. The Screening Committee considered the application a second time and rejected the same on the ground that, at the time of death the elder daughter was unmarried and employed in a scheduled bank, that the husband of the deceased Sri.G.Appan is a practising lawyer and the applicant was a student of LLB; secondly the husband was given family pension at the enhanced rate of Rs.14,045/- plus dearness relief. On the date of Annexure-A9 the husband was getting an amount of Rs.37,700/- as basic pension with dearness relief of Rs.4,524/-. They also considered the sum of Rs,14,17,720/- granted as retiral benefits besides Rs.10,83,162/- as GPF balance. They also owned a building in 8 cents of land with no liability. After considering various aspects including the assets and liabilities of the O.A No.731/2019 9 family, monthly income of the family, number of earning members, number of dependents, need-cum-economic status of the family etc. the application was rejected. The applicant has approached this Tribunal aggrieved by the said decision.
8. After hearing the learned counsel on both sides and considering the materials on record, I do not find valid reasons to interfere with the said decision.
9. Firstly, it is the settled proposition of law that employment assistance under the compassionate appointment scheme cannot be claimed as a matter of right. It is a need based concept. Immediate financial disruption is the dominating consideration. The object of the scheme is to grant appointment on compassionate ground to a depending family member of a Government servant dying in harness and thereby leaving his family in penury and without any means of livelihood. The question is whether the family could tide over the immediate financial crisis occurred due to the untime death of the bread winner of the family without an employment assistance.
10. The Hon'ble Supreme Court in the oft quoted decision in Umesh Kumar Nagpal and another v. State of Haryana and Others [(1994) 4 SCC 138] has stated as follows:
O.A No.731/2019 10
"..........As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the 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 be offered to the O.A No.731/2019 11 eligible member of the family..........."
11. In other words, granting of employment assistance under the compassionate appointment scheme is an exception to the general rule of recruitment. Since it is an exception, it has to be strictly construed.
12. It is specific that employment assistance can be considered only against 5% of the vacancies arising in a year. In other words, there must have been only limited vacancies under the scheme. Only most deserving member of the family, which is in utter penurious condition alone can be considered for the vacancy.
13. It is also settled proposition that the Court or Tribunal cannot direct the competent authority to appoint someone under the employment assistance scheme. The look out of the Tribunal is whether the applicant is a dependent member of the family of the deceased Government servant, whether on the untime demise the family has fallen in financial crisis which could be tide over only by granting employment assistance, whether there is a scheme in vogue in the organisation and the application given by the applicant was considered in the light of the scheme. To put it in other words, the Tribunal can only oversee whether the policy guidelines and standing instructions have been strictly adhered to by the competent O.A No.731/2019 12 authority.
14. I have considered the contentions of the parties in the light of the parameters. It is a fact that Radhamani is survived by her husband Sri.G.Appan, a lawyer of Thiruvananthapuram Bar and two children. On the date of death, the elder daughter was employed in a nationalised bank and the second daughter was doing her LLB course. Now she has also started practising as lawyer. In other words, out of the three surviving members, two were earning on the date of death. At the time of death the elder sister was not married also.
15. Normally, for considering the application for appointment, condition of the family on the date of death has to be taken into account. There are authorities indicating that situation of the family on the date of consideration of the application is relevant. Here in either case, the financial position of the family is not that bad. The very fact that the family could not tide over the crisis that happened on the untime demise of the Government servant itself is an indication that the applicant does not deserve employment assistance.
16. Secondly, it seems that the principle that family pension and other retirement benefits shall not be reckoned as the O.A No.731/2019 13 paremeters in considering the application for employment assistance has been overruled by the Supreme Court itself. In Central Bank of India v. Nitin, the Supreme Court has observed that Canara Bank, quoted supra, is not an authority for the proposition that financial criteria cannot be the ground for rejection of claim for compassionate appointment. In paragraphs 20 and 21 of the judgment, the Hon'ble Supreme Court has held as follows:
20. It is well settled that compassionate appointment is an exception to the rule of equality, which enables the dependent family members of a medically incapacitated employee who has no option, but to retire, or a deceased employee, to tide over the immediate crisis caused by the incapacitation or death of the breadwinner. Compassionate Appointment excludes equally or more meritorious candidates, much in need of a job, from the zone of consideration. Consideration for compassionate appointment must, therefore, be strictly in accordance with the prevalent rules for compassionate appointment applicable to the deceased/prematurely retired employee.
21. In this case, there is a financial criteria of eligibility for compassionate appointment under the Compassionate Appointment Scheme. Rules which provide for a financial criteria for appointment on Compassionate ground are valid and lawful rules which have to be construed strictly, as otherwise the quota reserved for compassionate appointment would be filled up excluding others who might O.A No.731/2019 14 be in greater and/or far more acute financial distress."
17. Regarding the fixation of income slab, in Shashi Kumar's case, quoted supra, the Supreme Court has held as follows:
"That leads the Court to the next aspect of the matter relating to the fixation of an income slab. In our view, the fixation of an income slab is, in fact, a measure which dilutes the element of arbitrariness. While, undoubtedly, the facts of each individual case have to be borne in mind in taking a decision, the fixation of an income slab subserves the purpose of bringing objectivity and uniformity in the process of decision making. The High Court was of the view that it was not open to the Finance Department to amend the Scheme. The circulars which are issued by the Finance Department cannot be construed to be an amendment of the policy. They are really clarificatory of the intent and purpose of the Scheme. The circulars are explanatory, since they are intended to guide the decision maker on the concept of indigency which is incorporated in the Scheme. In fact, as we have noted earlier, in the decision of this court in Shashank Goswami(supra), the Court was specifically dealing with a circular of the Comptroller and Auditor General of India which had imposed income limits respectively for Group 'B', 'C' and 'D' posts for the purpose of guiding the decision in the case of compassionate appointment. The fixation of income limits was not construed to be and is not an arbitrary exercise of power. However, what we find from the record of this case is that O.A No.731/2019 15 the income limit was fixed (as the High Court observed) on 29 September 2008 by the letter of the Finance Department. The income limit of Rs.1,00,000/- for a family of four persons has since been revised to Rs.1,50,000/- on 20 April 2011. Mr. P.S. Patwalia has, on instructions, stated before this Court that this ceiling has been reiterated on 27 July 2017. What should be the appropriate income criterion is undoubtedly a matter of policy for the State Government to determine. However, we would impress upon the State Government the need to periodically revise the income limits preferably at intervals of three years. Inflation and the increase in the cost of living have an important bearing on financial exigencies faced by families of serving as well as deceased employees. In fixing the income criteria for considering cases of compassionate appointment, it would be appropriate if the State revisits the income limit at periodic intervals, as we have indicated above. We clarify that it would be open to the State to revise the income limits at a frequency of less than three years, if the State is so advised."
18. Shashank Goswami, quoted supra, deals with a case of identical facts. Dealing with the circular issued by the Comptroller and Auditor General for bringing uniformity in the applications regarding the parameters on compassionate appointment of the family member in the case of death of a Government servant in O.A No.731/2019 16 harness, it was decided that the total income of the family from all sources including terminal benefits after death excluding GPF should be taken into account. At that time, the limits for Group-B employee was Rs.5 lakhs which has since been revised to Rs.14 lakhs with effect from 2008. The Apex Court has upheld such a specification. That means, now it is the settled proposition that terminal benefits also can be taken into consideration for finding out the most deserving person. Here the family of the applicant had obtained Rs.14,17,720/- as service benefits. For that reason alone, the decision of the respondents is liable to be sustained.
19. As indicated earlier, employment assistance is a need based concept and it cannot be sought as a matter of right. If there are numerous applicants under the scheme, the respondents will have to weigh the relative merits. Only the most deserving person who is in worst financial condition can be appointed under the scheme. Such an application should be considered objectively.
20. Two more aspects deserve consideration. Firstly, it was asserted by the applicant that loan availed by the deceased for the construction of the residential building is yet to be cleared. But the respondents have stated in clear terms that no liabilities were outstanding under the HBA, that no liabilities had been adjusted O.A No.731/2019 17 from the benefits of the late officer. The burden of proof is on the party who asserts these facts. Here not even a rejoinder was filed by the applicant.
21. Secondly, regarding the transaction with KSFE. It is that the mother had bid the chitty and instalments for the next five years are due. If the instalments were defaulted, in all probability the KSFE might have proceeded against the legal heirs. But no evidence is forthcoming on the score.
22. After considering the rival contentions and materials on record, I do not find any reason to interfere with Annexure-A9 order of the respondents.
The Original Application is dismissed. No costs.
(Dated, this the 28th March, 2023) JUSTICE K. HARIPAL JUDICIAL MEMBER ds O.A No.731/2019 18 List of Annexures ANNEXURE-A1- True copy death certificate issued by the Thiruvananthapuram Corporation dated 20-5-2010 ANNEXURE-A2:- True copy of the resolution passed by the members of the staff of the office of the Accountant General, office at Ernakulam dated 17-5-2010 ANNEXURE-A3- True copy of the resolution passed by the members of the offices of the Accountant General Thrissur branch dated 18-5-2010 ANNEXURE-A4- True copy of the application filed by the Applicant before the 2" respondent dated 11-6-2010 ANNEXURE-A6:- True copy of the letter written by the Applicant to the 2 respondent dated 8-5-2012 ANNEXURE-A6:- True copy of the Letter No. Admn/V-5-121/Com-
Appt/0049 dated 23-5-2012 given by the 3 respondent to the Applicant ANNEXURE-A7- True copy of the order dated 28-01-2013 in O.A.No. 476/2012 ANNEXURE-A8:- True copy of the Judgment dated 18-06-2019 in O.P. (CAT)No. 862/2013 ANNEXURE-A9:- True copy of the order No. DAG(A)/C.Cell/AJM/2019/56 dated 22-08-2019 issued by the 2nd respondent **********************