Central Administrative Tribunal - Ernakulam
K. S. Satheesh vs Union Of India Represented By Its on 26 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM
Original Application No. 756 of 2009
Tuesday, this the 26th day of October, 2010
C O R A M :
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
K. S. Satheesh,
S/o. Late Shri K.K. Sivadasan,
Residing at Kuzhikandathil House,
Parekunnel, Piravam,
Ernakulam District ... Applicant.
(By Advocate Mr. R. Sreeraj)
v e r s u s
1. Union of India represented by its
Secretary to Government of India,
Ministry of Finance, New Delhi.
2. The Chief Commissioner of Income Tax,
Central Revenue Building, IS Press Road,
Kochi : 682 018. .... Respondents.
(By Advocate P. Parameswaran Nair, ACGSC)
The Original Application having been heard on 04.10.10, this Tribunal
on 26.10.2010 delivered the following :
O R D E R
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER Aggrieved by the rejection of his claim for compassionate appointment, the applicant has filed this O.A. for a direction to the respondents to consider him for compassionate appointment against the posts in Group 'D in accordance with the Scheme dated 9th October, 1998.
2. The father of the applicant died in harness on 21.07.2003 after putting in service of above 23 years as Tax Assistant in the office of the Commissioner of income Tax, Kochi. The applicant submitted an application for compassionate appointment in accordance with the compassionate appointment Scheme dated 09.10.1998 on 26.11.2003. His application was rejected vide order dated 24.10.2008 as there were not enough posts of Group 'D' Peon available for him to be appointed.
3. The applicant submits that he is entitled to be considered for compassionate appointment against Group 'D' posts in accordance with the Scheme of 1998. The family of the deceased employee is in penurious condition. Non availability of sufficient number of vacancies has no ground to deny the applicant consideration against future vacancies at least for one more time. The respondents are bound to ascertain the possibility of accommodating the applicant in some other department also. The case of the applicant for compassionate appointment is covered by the decision of this Tribunal in O.A. No. 655/2008.
4. The respondents opposed the O.A. It was stated that the applicant's case was considered strictly in accordance with the instructions on the subject. In O.A. No. 655/2008, the direction of the Tribunal was to work out the total number of vacancies in the grade of Tax Assistant as well as Notice Server for the past years in view of the provisions contained in DOP&T letter dated 14.06.06 and to consider the case of the applicant therein. In the instant case, the applicant lacks the educational qualification prescribed for the post of Tax Assistant and Notice Server. Since the priority position awarded to the applicant was 5 by the Committee for the post of Group 'D' Peon, his case could not be considered within the permissible period of three years. It was further submitted that against the clear vacancies for the period 2002-03 to 2005-06, the earmarked vacancies for compassionate appointment in Group 'D' Peon category was only 01, being 5% of the quota for compassionate appointment, which was carried over from the recruitment year 2001 to 2002, because out of 33 vacancies of Group 'D' from 2003-04, 2004-05 and 2005-06, the respondents have cleared only 5 posts which were filled up by surplus cell candidates of DOP&T. Therefore, the applicant is not entitled for the reliefs as prayed for in the O.A.
5. In the rejoinder, the applicant submitted that on scrutiny of the reply statement filed by the respondents, it can be seen that there were at least three Group "D' vacancies available for consideration for compassionate appointment during the period from 2001-02 to 2005-06, but the respondents have utilised only one vacancy for compassionate appointment. As is evident from para 7(b) of Annexure A-2 Scheme read with letter No. 14014/3/2005-Estt(D) dated 14.06.2006, clearance by the Central Board of Direct Taxes (CBDT) is not required for making compassionate appointment and the 5% quota is to be calculated on the strength of actual number of vacancies available for direct recruitment and not on the strength of vacancies cleared by CBDT. Secondly, as per para 6(b) of Annexure A-2 Scheme, compassionate appointments are exempted from clearance from the surplus cell of DOP&T. The correct calculation of vacancies for compassionate appointment would show that there was one Group 'D' vacancy each available during 2004-05 and 2005-06 for compassionate appointment against which the applicant was liable to be considered, but was admittedly not considered. He was considered against a Group 'D' vacancy available during 2001-02. After giving appointments to 4 seniors to the applicant in the category of Notice Server, there is every likelihood of applicant's getting appointment as Group 'D', provided the respondents consider him in accordance with the law against the vacancies demonstrated to have been available in Group 'D' category during 2004-05 and 2005-06. The respondents kept the applicant's name alive for 3 years, but did not consider him for three consecutive years. The applicant is entitled to be considered against the vacancies of 2004-05 and 2005-06. Therefore, the O.A. should be allowed.
6. Arguments were heard and documents perused.
7. The short question to be decided in this O.A. is whether the claim of the applicant for compassionate appointment has been considered in accordance with the law. The 5% vacancies under direct recruitment is to be calculated on the basis of total direct direct recruitment vacancies for Group 'C' and 'D' posts. Total vacancies available for making direct recruitment would be calculated by deducting the vacancies to be filled on the basis of compassionate appointment from the vacancies available for direct recruitment in terms of DoP&T letter No. 14014/3/2005-Estt.(D) dated 14.06.2006. As per rule, the maximum time a person's name can be kept under consideration for offering compassionate appointment will be three years, subject to the condition that the prescribed Committee has reviewed and certified the penurious condition of the applicant at the end of the first and second year. In the instant case, the applicant's case has been considered only once. As per Annexure A-2 Scheme, clearance by CBDT is not required for making compassionate appointment. These points have been dealt with in O.A. 655/2008. The relevant extract from the order in aforesaid O.A. is reproduced as under :
"7. Arguments were heard and documents, including the official records perused. The records reflect the recommendation of the Committee as under:-
"He passed M Com from the Kerala University in May 2000. His family now consists of besides himself, a younger sister, not married aged 26 year, and their mother. He has an elder sister who had been married before the death of the Govt. Servant. Himself has no regular source of income. The younger sister, an M.A. B. Ed., is now working in an unaided private school on a salary of Rs 1,200 p.m. The only source of income of the family is the family pension of Rs 11,556/- p.m. And the relevant bank pass book shows a balance of Rs 1,29,094/- only, maintained for the girl's marriage. The only property of the family is a house in 18 cents of land at Mangaram, Pandalam. It is stated that there is liability of Rs 10000/- to a local cooperative society and the personal loan of Rs 10,000/-.
8. Considering the poor financial condition of the family, the case is recommended."
8. On the basis of the above the applicant's case was considered. In so far as the vacancies are concerned, as per the respondents, for the first time in November 2006 when the vacancies were cleared for Direct recruitment for the period 2001-2, 2002-03 to 2005-06. Such vacancies in so far as Tax Assistant is concerned was reflected as 17 and for Notice server the number of vacancies was 6. It was for this reason that the vacancies under 5% quota was for compassionate appointment taken as one each. And, since the applicant did not qualify in the eligibility test for Direct Recruitment for Tax Assistant (for that matter none out of ten qualified, and the applicant had maximum key depressions of 5449 while others had done less only) no appointment was made on compassionate ground to that post. However, in respect of notice server, the applicant's order of preference was kept at 7 and hence he could not be selected for the same as well.
9. The question is whether 5% of the vacancy under direct Recruitment should be restricted to that under the optimization scheme or 5% of total number of direct recruitment vacancies. In its rejection order dated 29th June 2006, the respondents have clearly stated that they had worked out the vacancies for direct recruitment out of the the vacancies cleared by the Screening Committee, which is one third of the total number of direct recruitment vacancies. However, clarification had been given by the Ministry of Personnel, Department of Personnel and Training, vide order dated 14th June 2006, which reads as under:-
"No. 14014/3/2005-Estt.(D) Government of India Ministry of Personnel, Public Grievances & Pension Department of Personnel & Training .....
New Delhi, dated the 14th June, 2006 Subject: Scheme for compassionate appointment under the Central Government - Determination of vacancies for.
The undersigned is directed to say that the existing Scheme for Compassionate Appointment is contained in this Department's O.M. No. 14014/6/94-Estt.(D) dated the 9th October, 1998 as amended from time to time. Para 7 (b) of this O.M. provides that compassionate appointment can be made upto a maximum of 5% of vacancies under Direct Recruitment quota in any Group 'C' or 'D' post.
2. After coming into effect of DOP&T instructions No. 2/8/2001-PIC, dated the 15th May, 2001 on optimization of direct recruitment to civilian posts, the direct recruitment would be limited to 1/3rd of the direct recruitment vacancies arising in the year subject to a further ceiling that this does not exceed 1% of the total sanctioned strength of the Department. As a result of these instructions, there has been a continuous reduction in the number of vacancies for direct recruitment, consequently resulting in availability of very few vacancies or no vacancy under 5% quota for compassionate appointment. Because of this, the various Ministries have been facing difficulty in implementing the Scheme for Compassionate Appointment even in the most deserving cases.
3. On a demand raised by Staff Side in the Standing Committee of the National Council (JCM) for review of the compassionate appointment policy, the matter has been carefully examined and taking into account the fact that the reduction in the number of vacancies for compassionate appointment is being caused due to operation of the orders on optimization of Direct Recruitment vacancies, the following decisions have been taken:-
While the existing ceiling of 5% for compassionate appointment may not be modified but the 5% ceiling may be calculated on the basis of total direct recruitment vacancies for Group 'C' and 'D' posts (excluding technical posts) that have arisen in the year. Total vacancies available for making direct recruitment would be calculated by deducting the vacancies to be filled on the basis of compassionate appointment from the vacancies available for direct recruitment in terms of existing orders on optimization.
4. That instructions contained in the O.M. No. 14014/6/94-
Estt.(D) dated 9th October, 1998, as amended from time to time stand modified to the extent mentioned above.
5. The above decision may be brought to the notice of all concerned for information, guidance and necessary action.
6. Hindi version will follow.
Sd/-
(Smita Kumar) Director (E.I)"
10. The above order does not appear to have been taken into account while working the total number of vacancies that could be filled up under the compassionate appointment scheme.
11. Yet another aspect is about consideration for three years. Respondents have considered the case of the applicant only once and by that time the period of three years passed and hence included that also as a reason for rejection. This is inappropriate. The rules stipulate, "The maximum time a person's name can be kept under consideration for offering Compassionate appointment will be three years, subject to the condition that the prescribed Committee has reviewed and certified the penurious condition of the applicant at the end of the first and second year. After three years, if compassionate appointment is not possible to be offered to the applicant, his case will be finally closed and will not be considered again." (emphasis supplied).
12. In the instant case, the applicant's case has been considered only once and on the ground that he could not make it through for Tax Assistant and that he is not No. 1 for the post of Notice Server his case has been rejected and quoting the three years' stipulation, his case stands closed once for all. This is unjustified for the two reasons as aforesaid viz., that vacancy ought to be at 5% of total number of direct recruitment vacancies without any truncation on account of optimization principle and secondly, the case of the applicant has to be considered for the second and third time.
13. In view of the above, the OA is disposed of with a direction to the respondents to work out the total number of vacancies in the grade of Tax Assistant as well as Notice Server for the past years keeping in view the provisions of the DOPT letter dated 14th June 2006 and consider the case of the applicants along with other eligible candidates and if the applicant makes it through he be given compassionate appointment and if not he be informed accordingly.
14. No time limit is specified as the matter involves re-working out of the vacancies and also to consider the other cases.
15. No costs."
8. Further, para 6A(b) of Annexure A-2 Scheme dated 9th October, 1998, stipulates as under :
"6. A. EXEMPTIONS Compassionate appointments are exempted from observance of the following requirements :
(a) ............
(b) Clearance from the Surplus Cell of the Department of Personnel and Training/Directorate General of Employment and Training."
9. In view of the above, if the rules and instructions in regard to appointment on compassionate ground are strictly followed, it is possible that the applicant can be considered for appointment as Group 'D' against the vacancies available during 2004-05 and 2005-06. Therefore, the O.A. deserves to be allowed. Accordingly, it is ordered as under.
10. The order Annexure A/1 dated 24.10.2008 is quashed and set aside. The respondents are directed to consider the case of the applicant for compassionate appointment against the posts in Group 'D' in accordance with Annexure A-2 Scheme for compassionate appointment dated 9th October, 1998 and other instructions on the subject, within a period of three months from the date of receipt of a copy of this order.
11. No order as to costs.
(Dated, the 26th October, 2010) K. GEORGE JOSEPH ADMINISTRATIVE MEMBER cvr.