Central Administrative Tribunal - Delhi
Sh. Narender Singh vs Government Of Nct Of Delhi on 21 October, 2013
Central Administrative Tribunal Principal Bench OA No.2335/2012 Reserved on: 31.07.2013 Pronounced on:21.10.2013 Honble Dr. Birendra Kumar Sinha, Member (A) Sh. Narender Singh S/o late Sh. Chander Pal R/o H.No. D-64, Gali No.3, Near Luv Kush Public School, Gharoli Village, Delhi. Applicant (By Advocate: Shri M.R. Sinha) Versus 1. Government of NCT of Delhi, Through Chief Secretary, Deli Secretariat, Delhi. 2. Delhi Development Authority, Through its Vice Chairman, Vikas Sadan, INA, New Delhi. Respondents (By Advocate: Sh. Manish Garg) O R D E R
The instant Original Application, filed under Section 19 of the Administrative Tribunals Act, 1985 is directed against the communication dated 09.12.2010 rejecting the application of the applicant for compassionate appointment. The applicant has prayed for the following relief(s):-
(1) Direct the respondents to appoint the appoint on compassionate grounds on any pot for which he is found eligible after test/interview/examination in any Department of Delhi Development Authority;
(2) Grant the cost and expenses of the OA in favour of the applicant.
(3) Grant any other relief as deemed just and proper by this Honble Court.
2. The case of the applicant, briefly put, is that his father late Chander Pal admittedly demised while in service after having rendered 15 years of service as Mali with the respondent organization on 01.11.1996. The wife of the deceased employee claims to have applied for compassionate appointment on 09.04.1997. The applicant submitted a representation on 21.01.2009 and subsequently on 21.12.2009. In the meantime, the applicant gained majority. The mother of the applicant and the wife of the deceased employee requested for appointment of the applicant on compassionate ground. However, the respondents refused to consider her case as being time barred vide communication dated 09.12.2010. The applicant submits that he had applied for appointment on compassionate ground after five years of the death of his father after attaining majority and prior to that his mother had been trying to persuade the respondents for her appointment which yielded no result at all. The applicant served the respondents with Legal Notice dated 22.07.2011 reiterating the same facts in response to which one Chander Sen Gupta, Deputy Director (P)-V/DDA directed the Deputy Director (Hort. Divn.-VII) to reply to the same. However, when no reply had been forthcoming, the applicant has filed the instant Original Application.
3. The applicant has adopted the following grounds for his application:-
Initial application of the wife of the deceased employee had been submitted within a period of one year of the death of the deceased employee;
The wife of the deceased employee kept on submitting applications, however, the first reply was given on 29.08.2011 which has already been dealt with above.
The applicant has relied upon a Circular dated 25.03.2011 of the respondent organization which provides that where the applicant is a minor the case should not be forwarded till he attains majority and within one year thereof. Where the applicant is less than 14 years of age, the widow could apply for the job and nominate a bread winner within the prescribed period.
The applicant further relies upon para (v) of the DDA Guidelines which provide that where family is in great distress, the benefit of compassionate appointment may be extended to widow/son/daughter/near relative of the deceased employee.
The family of the applicant is indigent and on brink of starvation.
4. The respondents have filed their separate counter affidavits contesting the case of the applicant principally on three grounds. In the first place, the widow of the deceased employee had claimed compassionate appointment on 09.04.1997 without having submitted the requirement documents. She did not, however, pursue her application nor did she provide the documents requried. In the second place, as per the Scheme of compassionate appointment of the DDA, the application should have been submitted within a period of one year from the date of attaining majority by the applicant. The applicant attained majority in the year 2007 but had applied for the compassionate appointment on 03.09.2010 after a lapse of more than 2 years. It was only at this time the required documents were furnished. In the third place, the respondents have vehemently submitted that appointment on compassionate grounds is meant only for the family of such deceased employees who are reduced to a state of destitution on account of death of the bread winner. The lack of adequate interest shown by the applicant indicates that the family was not reduced to such state of destitution that it could not survive without the appointment. Instead, it has survived well so as to pursue an expensive litigation.
5. The applicant submitted a rejoinder in which he has reiterated the points raised in the OA. In his rejoinder, the applicant puts the entire blame upon the respondents for not being vigilant and solicitous enough for the welfare of the family of the deceased employee. The requirement of documents could have been indicated at an earlier date so that the widow of the deceased employee could have furnished the same in good time.
6. I have carefully considered the pleadings of the parties as also the documents submitted by them and have listened to the oral submissions put forth by their respective counsels. On the basis of the above, it transpires that the following issues become germane for a decision in this case:-
Whether the application of the applicant submitted for compassionate appointment is time barred?
Whether the application for compassionate appointment of the applicant is not justified by the circumstances?
What relief, if any, could be granted to the applicant?
7. In respect to the first issue, the Scheme of compassionate appointment of the respondent organization was promulgated vide OM dated 01.06.1998 vide which the compassionate appointment is extended to the dependents of DDA servant who either lose their lives in the course of their duties or die in harness otherwise while in service or are retired on medical grounds. Son/daughter/widow/ widowers of the DDA employees are also eligible for appointment on compassionate grounds. However, where the widow cannot take up the employment and her children are minor, the application for compassionate appointment of the child has to be made within one year of such son or daughter attaining majority. The family has another option under such circumstances of nominating a near relative/adopted son/daughter subject to a certain given conditions. Para (V) of the afore mentioned Circular provides as under:-
(V) DDA can also consider the requests for compassionate appointment even where the death took place long ago say five years or so while considering such belated requests it should be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family on the passing away of their government servant (DDA) in harness. The very fact that the family has been able to manage some how all these years should normally be adequate proof to show the family had some dependable means of subsistence. Therefore examination of such cases calls for a great deal of circumspection. The decision in these cases may be taken at the level of head of the Department VC/Commissioner (P) on the following aspects:
i) The powers shall be exercised personally by the Commr.(P)/DDA. It shall not be delegated to the lower authority.
(ii) The case should not be more than ten years as reckoned from the date of death.
(iii) The widow of the deceased employee should not have remarried.
(iv) The circumstances of the case should be such as to warrant realization of three time limit of five years.
(v) The reasons for relaxing the time limit should be placed on record.
(vi) The request for compassionate appointment should have been received by the DDA Administration as soon as the son/daughter to be considered for compassionate appointment has become a major say with in a maximum period of one year or so.
Where death occurred more than 10 years back or so and also in cases where death took place between 5-10 years back but the conditions stipulated in para v (a) above are not fulfilled a compassionate appointment is not within the competency of the commissioner (P) except the case of loss of life in cause of duty or getting crippled in the course of duty. However, in such cases, if compassionate appointment is otherwise admissible and if after careful examination of the case it is found that there are special features or circumstances justifying relaxation of time limit as also criteria, the cases could be considered by the DDA Administration for approaching VC/Screening Committee for relaxation of as a special case. Such a reference to the VC/Screening Committee should be made by the DDA Administration, only with the personal approval of Commissioner (P).
8. Admittedly, the death of the employee had taken place on 01.11.1996. There is a copy of the application dated 09.04.1997 submitted by the applicant on record, which reads as under:-
It is submitted that the applicant Dhanpali W/o Late Shri Chander Pal, has been paid the amount of Leave Encashment, G.P.F. and B/F. Therefore, you are requested to please forward the file of the applicant for service of the applicant. I shall be highly obliged.
9. The above application can hardly be construed to be an application for compassionate appointment. The format and requirement of the application for grant of compassionate appointment have all been prescribed and have to be supported by documents. In this regard, OM dated 25.03.2011 prescribes that it should be complete in all respect. For the sake of clear and better elucidation para (2) of the OM is reproduced hereunder:-
It may be ensured before recommending the case, that it is complete in all respect and all required documents with complete attestation are attached and are sent within the specified period (either within 5 years from the date of death of employee, or if the legal heir was minor within one year from the date of attaining the age of majority). The cases forwarded should be in consonance with the guidelines of Compassionate Appointment.
10. Here I also take up the examination of the plea of the applicant that the respondent organization was not vigilant enough to the interest of the family of the deceased employee in as much as they did not depute an officer to get the form filled up. It, on the other hand, appears that the widow of the deceased employee was very casual in her application and did not follow it up to any significant extent. It takes two hands to clap. In absence of pursuance on the part of the applicant, it would be too much to expect the respondent to manage the show alone. Further, it also appears that the family had already made up its mind to pursue the case when the applicant attained majority.
11. On examination of the papers and documents submitted it is quite clear that the application dated 09.04.1997 was hardly an application for compassionate appointment wherein the request appears to have been made in passing reference. Though the applicant claims that his mother had submitted a reminder in 2001 and had regularly been following up the same, the next application submitted is dated 21.12.2009. The provisions, as have been cited above, make it clear that where the widow of the deceased having minor children is not able to take up the employment, the application should be made within one year of attaining the majority by such child seeking compassionate appointment. This is clearly not the case here. The applicant has filed the application for compassionate appointment with a delay of two years after attaining the majority in the year 2007. It is to be construed that the compassionate appointment is not a matter of right under the Scheme but in fact is an exception to Articles 14 & 16 of the Constitution providing a special dispensation to the family of such deceased employee which is reduced to the state of destitution and cannot carry on without job. Moreover, it is confined to 5% of the jobs being created through direct recruitment. It has, therefore, to be confined strictly to a time schedule because adhering to this criterion there is a long list of persons seeking similar appointment. It has nowhere been envisaged in the Scheme that once having defaulted in filing the claim, a person can come back and file his claim on a later date. This infringes not only the provisions of the Scheme but also affects the rights of others who may be genuinely needy for the job. The case of State of Manipur versus Md. Rajaodin [2003(7) SCC 511], relied upon by the respondents, is somewhat similar wherein the father of the applicant had expired on 19.07.1980 and the applicant filed WP(C) No.1202/2001 in the year 2001 pleading that he was initially offered a post of Grade-IV vide letter dated 15.12.1999 but no appointment was actually made. The State resisted the claim not only being belated but also on the ground that there was a ban imposed on all appointments. The Honble Supreme Court, after having examined the matter in detail, denied the claim of the applicant by observing as under:-
12. In State of U.P. and others v. Paras Nath (1998(2) SCC 412) : 1999(4) SCT 292 (SC) it was held that the purpose of providing employment to the dependent of a Government servant dying-in-harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments. None of these considerations can operate when the application is made after a long period of time. In that case also the delay was 17 years.
13. When case of the respondent is considered in the panorama of aforesaid legal principles, the inevitable conclusion is that he was not entitled for appointment. Even after 1984 scheme came into force, the application was filed after a long lapse of time. He, therefore, had no right much less a legal right to ask for an appointment. Learned Single Judge of the High Court was not justified in directing the appellant to give appointment. It is also on record that there was a ban on direct recruitment under Die-in-haraness scheme as is evidenced by Office Memorandum dated 24th July, 2001. The scheme itself provided for a clearance from the Government in the Department of Personnel and Administrative Reforms (Personnel Division). In view of the afore discussion, this issue is decided against the applicant. It must be clearly stated that the compassionate appointment not being a right but a special dispensation to the family of the deceased employee, the rules of the Scheme must be observed strictly and unerringly lest they interfere with the rights of others who may be more deserving.
12. Coming to the second issue, the claim of the applicant is that his family is in indigent condition and has been reduced to destitution so much so that it cannot survive without job, which is a fundamental requirement of the Scheme for securing appointment. However, I have already take note of the fact that the initial prayer was made in a very casual and passing reference only to keep the claim of compassionate appointment alive. Even after having attained majority by the applicant, the applicant delayed in making the application for compassionate appointment for more than two years. The appointment under the Scheme is governed by the theory of competent indigence and that of immediacy. These theories in simpler words merely state that the appointment is being made through a process where a family may be indigent but another family may be more indigent. In addition, the indigence should be immediate in nature and where the family has been able to survive for a long period, the claim is treated to be barred by the theory of immediacy.
13. In the case of Local Administration Department and Another versus M. Selvanayagam @ Kumaravelu [2011 (13) SCC 42], the Honble Supreme Court has gone into such specific issues and have held as under:-
4. Failing to get a favourable response to his application, he filed a Writ Petition before the High Court seeking appropriate directions to the concerned authorities. That Writ Petition was disposed of by a single Judge of the High Court with a direction to the authorities to consider his claim for appointment on compassionate grounds afresh and pass an order on his application within four months from the date of receipt of that order. This order (first in the series) passed by the High Court was followed by a contempt proceeding initiated against the authorities at the instance of the respondent but that is not relevant for the present and we need not go into that any further. Suffice to note that eventually, the Municipality rejected the respondent's claim for compassionate appointment vide order dated 19.4.2000.
5. The respondent once again went to the High Court. A single Judge of the High Court, this time, rejected the Writ Petition. Against the order passed by the single Judge, he filed an intra-court appeal which was allowed by judgment and order dated April 30, 2004, and the Municipality was given the direction to appoint the respondent within three months from the date of the order.
xxx xxx xxx
12. Ideally, the appointment on compassionate basis should be made without any loss of time but having regard to the delays in the administrative process and several other relevant factors such as the number of already pending claims under the scheme and availability of vacancies etc. normally the appointment may come after several months or even after two to three years. It is not our intent, nor it is possible to lay down a rigid time limit within which appointment on compassionate grounds must be made but what needs to be emphasised is that such an appointment must have some bearing on the object of the scheme.
13. In this case the respondent was only 11 years old at the time of the death of his father. The first application for his appointment was made on July 2, 1993, even while he was a minor. Another application was made on his behalf on attaining majority after 7 years and 6 months of his father's death. In such a case, the appointment cannot be said to sub-serve the basic object and purpose of the scheme. It would rather appear that on attaining majority he staked his claim on the basis that his father was an employee of the Municipality and he had died while in service.
14. In the facts of the case, the municipal authorities were clearly right in holding that with whatever difficulty, the family of Meenakshisundaram had been able to tide over the first impact of his death. That being the position, the case of the respondent did not come under the scheme of compassionate appointments.
14. In view of the above discussions, I find the claim of the applicant hopelessly barred by time and not covered by the theory of immediacy. Therefore, the instant Original Application stands dismissed with no order as to costs.
(Dr. Birendra Kumar Sinha) Member (A) /naresh/