Central Administrative Tribunal - Delhi
Devender Kumar vs Comptroller And Auditor General Of ... on 13 December, 2024
1
O.A. No. 3082/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 3082/2022
Reserved on: 23.10.2024
Pronounced on: 13.12.2024
HON'BLE SHRI AJAY PRATAP SINGH, MEMBER (J)
Sh. Devender Kumar (Aged about 38 years)
S/o Late Sh. Ramesh Chand,
Post MTS, Group 'C',
1-178, Dharam Colony,
Palam Vihar, Gali No.9, Phase-1,
Gurugram (Haryana) - 122 017.
...Applicant
Versus
1. Comptroller and Auditor General of India through C&AG,
9, Deendayal Upadhyay Marg,
New Delhi - 110 024.
2. The Director General of Audit (Infrastructure)
Office of C&AG of India,
3rd Floor, 'A' Wing, IP Bhawan,
New Delhi - 110 002.
...Respondents
For Applicant: Mr. Prem Chand, Advocate with Mr. Chander Bhan,
Advocate
For Respondents: Dr. Surender Singh, Advocate
ORDER
AS PER AJAY PRATAP SINGH, MEMBER JUDICIAL:
The applicant - son of Sh. Ramesh Chand Selection Grade Record Keeper Government servant died in harness, by means of this Application has invoked the jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 for direction to respondents to grant appointment on compassionate grounds.
PRAYER
2. Applicant has claimed following main relief (s) [as extracted from the OA] reads as under:-
2 O.A. No. 3082/2022"(i) Quash and set aside impugned order dated 23.06.2022, whereby application of the applicant has been rejected for his appointment on compassionate grounds.
(ii) Quash and set aside minutes of meeting dated 2.2.2022 of Departmental Screening Committee to the extent, the applicant has been rejected for his appointment on compassionate grounds as MTS (Group 'C') deferred by subsequent committees in their meetings held on 16.07.2014, 08.01.2015 and 15.03.2018 for next year(s) vacancy.
(iii) Direct the respondents to declare that the applicant has been duly recommended for his appointment on compassionate ground by the Departmental Screening Committee comprising three Directors in its meeting held on 30.10.2013 as MTS, Group 'C' in the PB-1-5200-20200 with Grade Pay Rs.1800, but in spite of that, the applicant has not been given appointment by the respondents rather kept him in the dark, causing him a great injustice.
(iv) Direct the respondents to give the appointment letter to the applicant as per the specific recommendation for his appointment as MTS, Group 'C' by the said Committee in its meeting held on 30.10.2013 and also recommended by the subsequent committees in their meetings held on 16.07.2014, 08.01.2015 and 15.03.2018 but deferred for next year's vacancy.
(d) Cost of litigation.
(e) Pass any other and further order which this Hon'ble Tribunal
may deem fit and proper in the facts and circumstances of the case."
FACTS IN BRIEF
3. Briefly stated facts as adumbrated by the applicant in the OA that the father of the applicant was appointed as Record Keeper and later on given Selection Grade Record Keeper in the office of respondent no.2 - Director General of Audit (Infrastructure). Father died in harness on 01.01.2013 and mother of the applicant made a request on 22.01.2013 to the respondent no.2 to grant compassionate grounds appointment [in short - CGA] to the applicant.
4. The mother of applicant mentioned in the application dated 22.01.2013 for CGA that elder son is married and employed in the government and no financial help given by him to the deceased family.
5. Applicant was called on 30.10.2013 to appear for interview for CGA. The Departmental Screening Committee [for short - DSC] held meeting on 30.10.2013 and considered case of the applicant for 3 O.A. No. 3082/2022 CGA and recommended name for CGA to the post of MTS. The applicant has been found eligible and fit to be appointed to the post of MTS (Group 'C') in PB-I Rs.5200-20,200/-with GP Rs.1800/-.
6. Respondent no.2 should not have included name of the applicant for next DSC meeting held on 16.07.2014 and again for the second time considered for CGA to MTS. The DSC meeting on 16.07.2014 recommended name of Ms. Sujata for MTS and name of applicant considered and deferred for further consideration subject to availability of vacancy.
7. The DSC meeting held on 08.01.2015 for CGA and amongst five candidates, applicant placed at serial no.2. The DSC third time found him eligible but deferred again for further vacancy and recommended name of another candidate - Manish (application dated 10.09.2014).
8. The DSC held meeting on 15.03.2018 for fourth time for panel year 2017-2018 against one vacancy and candidatures of nine candidates submitted including applicant. Applicant's case was again deferred for non-availability of vacancy in panel year 2017- 2018.
9. Respondent no.2 vide letter dated 26.02.2021 informed applicant to submit application in prescribed format for CGA. The DSC meeting held on 02.02.2022 for fifth time and this time rejected case of applicant - deferred case, without examining recommendations of DSC dated 30.10.2013, 16.07.2014, 08.01.2015 and 15.03.2018, wherein applicant was duly found eligible and recommended for CGA to MTS but due to lack of vacancies for CGA could not be appointed.
10. DSC meeting dated 02.02.2022 considered four out of five candidates after date of death of the father of applicant - RTI reply dated 09.09.2022 shows one vacancy of MTS available in year 2022 but respondents did not consider applicant in highly illegal manner and denied CGA to him. Applicant can be considered against waitlist as per Circular dated 06.10.2015 in any other offices in Delhi of the department against CGA vacancy.
4 O.A. No. 3082/202211. Applicant seeking direction to set-aside Impugned Order dated 23.06.2022 and minutes of DSC held on 02.02.2022. So also to declare applicant recommended by DSC held on 30.10.2013 to MTS for CGA and issue offer of appointment on compassionate grounds.
12. Per contra, respondents are contesting claim of applicant by filing counter reply affidavit and additional affidavit that Shri Ramesh Chand, the father of the applicant was working as Selection Grade Record Keeper in office of Principal DCA-II, New Delhi and died in harness on 01.01.2013. The mother of applicant submitted request dated 22.01.2013 that eldest son - Mr. Sanjay Kumar was employed and living separately and her son, i.e., applicant be considered for CGA.
13. The elder brother of applicant, Sanjay Kumar appointed as MTS in this office on 25.11.2011 and promoted as Clerk on 03.04.2017, as Auditor on 02.04.2018 and Senior Auditor (Level-6) on 23.12.2021 and presently working as Senior Auditor in the office of respondent no.2.
14. The application of the applicant for CGA was considered in accordance with DoP&T O.M. dated 16.01.2013, consolidated Instructions on compassionate appointment (in short the Scheme for CGA) in DSC meeting held on 30.10.2013 and the minutes of meeting dated 30.10.2013 with requisite documents were forwarded to H.Q. office for approval vide this Office letter dated 13.12.2013.
15. The DSC meeting held on 30.10.2013, considered three applications for CGA and evaluated cases of three candidates and found applicant scored 120 marks as highest in the panel and recommended for post of MTS with remarks in evaluation sheet in case of applicant that one family member of deceased employee is a government servant and deceased employee has an ancestral house in the village and family residing in the government accommodation. The Head Quarter vide Office Order dated 31.12.2013 held that applicant not entitled for 30 marks in job column as per CAG Circular No.5 dated 5 O.A. No. 3082/2022 09.02.2012 (Annexure R-6) and only '00' in job column is correct view. Accordingly, the revised score of the applicant reduced to 90 marks from 120 marks, which was not the highest score in the year 2013 and the applicant was not appointed on CGA for DSC held on 30.10.2013. The Headquarter direction issued vide Order dated 31.12.2013 (Annexure R-5) and vacancy for panel year 2013 had elapsed on 31.12.2013. Thus, no appointment could be made in the year 2013. Thereafter due approval vide letter dated 15.05.2014 for extension to carry forward the vacancy of year 2013 for cases of year 2014 was obtained. As per FAQs-DoP&T O.M. dated 30.05.2013 for CGA no waiting list is prepared and no appointment can be made against the future vacancy.
16. DSC constituted for year 2014 and met on 16.07.2014, considered three applications against only one vacancy. Applicant's case was also considered scored 100 marks and Ms. Sujata was awarded highest marks (130 marks) hence considered for the CGA whereas case of applicant was deferred for subsequent year subject to availability of vacancy. There was difference of marks awarded in 2014 and 2013 in case of applicant and Ms. Sujata because DSC held in 2013 has not awarded marks for criteria-suitability of post. The applicant scored 100 marks (90 out of 180 for different criteria and 10 out of 20 for criteria suitability for the post) whereas Ms. Sujata had scored 130 marks (115 out of 180 for different criteria and 15 out of 20 marks for criteria suitability post) and being most meritorious recommended for CGA to MTS post.
17. Applicant's application for CGA was again placed before DSC meetings held on 08.01.2015, 15.03.2018 and 02.02.2022. There was no vacancy in year 2018-2019, 2019 and 2020, hence no DSC was constituted. After restructuring of Auditor cadre (Group 'C') w.e.f. 01.01.2021 and increase in sanctioned strength under DR post there was vacancy in year 2021 and 2022.
18. Accordingly, DSC meeting held on 23/27.12.2021 but deferred and DSC meeting held on 2/7.02.2022 and considered all seven applications till date in light of procedure given in para 13 of O.M. dated 16.01.2023 and 23.08.2021 and issued from time to 6 O.A. No. 3082/2022 time. The DSC rejected application of the applicant with remarks that all dependent family members including applicant (DOB 21.05.1984) were major at the time of death on 01.01.2013 of deceased employee and already exceeded maximum age limit for appointment to available vacancies. Further, the son of deceased employee was a permanent government employee in IAAD at the time of death of deceased employee and currently posted as Senior Auditor. Deceased employee family managed to sustain for more than eight years.
19. The case of applicant for CGA has been considered in accordance with the Scheme for CGA and on fifth time consideration, same has been rejected. The respondents also averred in the counter reply that it is a well settled principles of law that there is no vested legal right to claim CGA and the OA is bereft of merits and no interference is called for.
20. Rejoinder has been filed by the applicant reiterating stand taken in the OA and further stated that respondents did not disclose recommendation of DSC held on 30.10.2013 and not issued any offer of appointment on CGA. Hence, the present OA cannot be declared as time barred. Respondents never denied CGA to the applicant based on DSC meeting held on 30.10.2013 but did not issue offer of appointment hence entitled for consideration since 2013.
21. It is also the case of applicant and averments made in the rejoinder that DSC held on 30.10.2013 wrongly awarded 120 marks, less marks, whereas he is entitled for 130 marks as per RTI dated 10.01.2023. DSC held meeting on 02.02.2022 and granted less marks, 80 out of 165 marks, whereas there was no change in financial condition of family. The DSC was well aware on 30.10.2013 that one of members of family of deceased employee was a government servant hence correctly awarded 30 marks and applicant running pillar to post for more than nine years for CGA and found eligible and suitable in year 2013 but till date not been appointed on CGA.
7 O.A. No. 3082/202222. Applicant has also averred that age eligibility of applicant was to be considered on date of application for CGA dated 22.01.2013 and was aged 28 years, not over-aged. DSC finally arbitrarily rejected candidature of the applicant on 02.02.2022 and hence the present O.A.
23. Additional affidavit on behalf of the respondents also been filed in rebuttal to averments made in the rejoinder reiterating and elucidating in detail, points allotted to applicant in DSC held on 30.10.2013. Additional affidavit on behalf of the respondents filed to demonstrate the objectively and transparent system of allotment of marks on each consideration, for five evaluations. Thus, since year 2013 applicant's case for CGA considered as per Scheme for five times and on the fifth time in DSC dated 02.02.2022 rejected.
24. Rejoinder has also been filed by the applicant to additional affidavit by the respondents and stated that DSC on 30.10.2013 should have awarded 30 marks as correct marks for no immovable property in his name, as accepted by respondent no.2 in RTI reply dated 01.01.2023. The applicant was entitled for 130 marks instead of 120 marks in DSC held on 30.10.2013. So far as one earning member as government servant is concerned, in that case prior approval of CAG was required to be obtained. The applicant's case was thoroughly examined and found fit for appointment in DSC dated 30.10.2013 for post of MTS for CGA but in malafide and illegal manner carried forward vacancy of year 2013 to next year for vested interest to deprive the applicant. Action of respondents making applicable Circular No.5 dated 09.02.2012 is afterthought. The DSC on 16.07.2014 once again erroneously granted only 20 marks for immovable property instead 30 marks ought to have been granted. The ancestral property/house of 80 square yards in name of deceased employee and there are five share holders. Applicant ought to have been awarded 110 marks instead of 100 marks for attribute - no immovable property in name of the deceased employee. Respondents with malafide intention to accommodate Ms. Sujata and Sumit awarded 85 marks to each and applicant's actual total marks comes to 90 marks has been ignored. Applicant has also made averment that DSC on 02.02.2022 rejected candidature on 8 O.A. No. 3082/2022 false grounds, that able to sustain more than eight years, whereas DSC not held for vacancy years 2016, 2017 and 2019 to 2021 for five years. Mr. Yadhveer Singh appointed in the same DSC dated 02.02.2022 after 11 years as his father died on 12.08.2011 and without NOC from second wife and daughter of deceased employee. DSC also ought to have considered that deceased employee in present case was suffering from chronic diseases and only received total retiral benefits Rs.8,23,240/- and three candidates with more than double of bank balance awarded 85 marks and considered for CGA.
SUBMISSIONS ON BEHALF OF THE APPLICANT
25. Shri Prem Chand, Advocate with Sh. Chander Bhan, Advocate appearing for the applicant, vociferously canvassed and can be summarized as under -
(i) For the first time in case of the applicant, the DSC in its meeting held on 30.10.2013, after examining assets, suitability and all other records vide recommendation dated 30.10.2013 found the applicant suitable to be appointed for the post of M.T.S. (Group 'C') in PB-I with GP Rs.1800/- for appointment on CGA against single available vacancy for the panel year 2013. The respondent no.2 did not disclose this vital fact of recommendation by DSC on 30.10.2013 and applicant's case was again and again kept in DSC for five times. So also fact of the matter, the mother of applicant at outset informed that elder son, member of deceased family, is in government service employed under respondent no.2 and knowing well this factum, 30 marks under attributes - "job" was rightly granted but without any information, the respondent no.2 behind the back of applicant, sent minutes of DSC dated 30.10.2013 to H.Q. Office and in view of Office Circular No.5 dated 09.02.2012, reduced 30 marks to '00' under attribute "job" stating that as there was no prior approval of DA-I as provided under the Scheme for CGA. So also respondents in malafide manner in DSC meeting did not grant 30 marks under attribute immovable property instead granted 20 marks. The applicant entitled for 30 marks against particular - "immovable property". There is one ancestral property house of 80 square yards in name of deceased employee at Rewari, 9 O.A. No. 3082/2022 Haryana in name of five share holders and ought to be treated by DSC dated 30.10.2013 as "no immovable property" in name of deceased. Thus, applicant was entitled for total marks to 130 instead of 120 marks in DSC held on 30.10.2013, whereas H.Q. reduced from 120 to 90 marks and in highly illegal manner and debarred applicant for CGA.
(ii) The second time case of applicant was considered in DSC meeting held on 16.07.2014. Whereas respondent no.2 ought to have informed DSC on 16.07.2014 that DSC dated 30.10.2013 already found applicant suitable and instead of applicant giving appointment to MTS, respondent no.2 in malafide manner again placed the matter before the DSC meeting dated 16.07.2014. DSC held on 16.07.2014 again did not grant 30 marks out of 30 maximum marks for "immovable property" - attribute as the ancestral property house 80 sq. yards in name of five share holders and no ancestral property in name of the applicant. Based on low merit again applicant's case deferred and Ms. Sujata recommended for CGA for carried forward vacancy of year 2013 in the DSC held on 16.07.2014 and applicant has been again illegally denied CGA.
(iii) The third time DSC meeting held on 08.01.2015 and Mr. Manish placed at serial no.1 was recommended and applicant including three others were deferred for future vacancy for one year whereas in case of Manish application for CGA received on 10.09.2014.
(iv) The fourth time, DSC held meeting on 15.03.2018 for vacancy panel year 2017 - 2018 for single vacancy. DSC on 15.3.2018 recommended name of Ms. Nisha Kumari due to death of husband on 24.07.2017 and again applicant could not be considered for lack of vacancy for year 2017-2018.
(v) For the fifth time, the DSC meeting held on 02.02.2022 to consider cases of 7 candidates including applicant. After 11 years of date of death of employee in case of Sh. Yudhveer Singh, appointed and case of applicant rejected as the family survived for last 8 years. DSC on 02.02.2022 rejected case of the applicant on financial and other suitability criteria, whereas DSC dated 30.10.2013, 10 O.A. No. 3082/2022 16.07.2014, 08.01.2015 and 15.03.2018 already found applicant eligible but due to lack of vacancy could not be considered for CGA.
(vi) Respondent no.2 acted actuated by malafides and all considerations of DSC after 30.10.2013 is no consideration in eye of law. The applicant is entitled for 30 marks out of 30 marks against immovable property attributes and arbitrarily granted 20 instead 30 marks as there is no ancestral property in name of the applicant. The father of applicant has one 80 sq.yard ancestral house shared by five persons at Rewari, Haryana.
(vii) DSC held on 02.02.2022 wrongly awarded 80 marks and applicant entitled for 90 marks. Smt. Sunita and Sh. Sumit appointed on 85 marks whereas applicant given only 80 marks, whereas for no immovable ancestral property, the applicant ought to be given full 30 marks instead 20 marks given. Thus, the applicant be awarded 90 marks and declared selected in DSC dated 02.02.2022. So also the applicant was eligible on date of application dated 22.01.2013, 28 years not barred by age. So also about earning member already declared in application dated 22.01.2013 to the effect that my elder brother is a government servant employed under respondent no.2. So also team of respondents verified said aspect and still considered and awarded 30 marks in DSC held on 30.10.2013, whereas later on in arbitrary manner vide H.Q. Office letter dated 31.12.2013 (Annexure R-5) deducted 30 marks for earning member - in deceased family under head - job - Nil, whereas DSC held on 30.10.2013 already granted 30 marks for Job after due verification of records.
(viii) The applicant ought to be appointed based on DSC dated 30.10.2013 and after 11 years Sh. Yudhveer Singh considered by DSC on 02.02.2022. The respondents also not considered that deceased employee had been suffering from illness and received total retiral benefits only Rs.8,23,240/- and all other three candidates given CGA had cash balance more than double the applicant.
(ix) Hon'ble Supreme Court in case of Umesh Kumar Nagpal Vs. State of Haryana, SLP (C) No.10504 of 1993 decided on 11 O.A. No. 3082/2022 04.05.1994, Their Lordships held that - "whole object of granting CGA to enable the family to tide over the sudden crisis and relieve the family of the deceased from financial destitution and to help it get over the emergency".
(x) In case of Govind Prakash Verma Vs. LIC (2005) 10 SCC 289, Hon'ble Supreme Court held - "Compassionate appointment cannot be refused on the ground of another member of the family had received appropriate emolument and service benefits."
(xi) Hon'ble Supreme Court in case of Yogesh Nagraoji Ugate Vs. State of Maharashtra & Ors. [Civil Appeal No.6626 of 2019] held -"For CGA payment of dues after death of government servant cannot be a ground for denying CGA"
(xii) In case of Jaideep Bola Vs. Commissioner of Police & Ors, reported in 2018 (3) AISLJ 366, the Coordinate Bench of this Tribunal at Delhi directed respondents to reconsider the case afresh as CGA denied due to him being overage.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
26. Dr. Surender Singh Hooda, learned counsel appearing for the respondents argued and can be summarized as under -
(i) Sh. Ramesh Chand, the applicant father working as Selection Grade Record Keeper in Office of Principal DC-II, New Delhi expired on 01.01.2013. Wife of deceased employee vide application dated 22.01.2013 for CGA to the applicant informing that the eldest son is already a government servant appointed as MTS in office of respondent no.2 Sanjay Kumar - the elder brother of the applicant promoted as Clerk on 03.04.2017 as Auditor, Senior Auditor (Level-
6) on 23.12.2021. The DSC constituted as per O.M. dated 16.01.2013 (Annexure R-3) for DSC meeting dated 30.10.2013. The DSC on 30.10.2013 recommended case of applicant for appointment to the post of MTS and the case was sent to the Headquarter office vide letter dated 13.12.20213. The Headquarter vide letter dated 31.12.2013 (Annexure R-5) informed that applicant not entitled for 30 marks in light of CAG Circular No.5 dated 09.02.2012, as one of the family members - the eldest son of the deceased employee is 12 O.A. No. 3082/2022 government servant earning member of the family. Accordingly revised score of applicant reduced to 90 marks from 120 marks and could not be appointed due to less meritorious and vacancy for panel year 2013 was carried forwarded as per rule.
(ii) DSC meeting dated 16.07.2014 met to consider names for one vacancy of MTS and Ms. Sujata scored highest point 130 for appointment to MTS, whereas applicant score was 100 marks on correct attributes. The applicant was awarded 20 marks out of maximum 30 marks for "immovable property" as deceased employee has an ancestral house in the village, Rewari, Haryana. Due to single available vacancy only name of most meritorious candidate Ms. Sujata considered and applicant's name deferred for next DSC.
(iii) Applicant was again considered on 08.01.2015 for 'Nil' vacancy for MTS as per H.Q. Circular No.5 dated 09.02.2012 and no points were allotted as there was no vacancy and deferred for future vacancies.
(iv) Applicant again considered for fourth evaluation in DSC held on 15.03.2018 based on model evaluation as per H.Q. Circular No.34 dated 28.09.2016 and applicant could score 80 marks out of maximum marks 165 and Ms. Nisha Kumari scored 110 points. Ms. Nisha Kumari considered as she had scored 110 highest point for CGA for MTS post and due to single vacancy for year 2017-2018, the case of applicant was deferred for next consideration by DSC.
(v) Applicant was again considered for the fifth evaluation with three fresh cases and four deferred cases in DSC held on 02.02.2022 (Annexure R-11) for 6 vacancies - MTS - 03 and Auditor
- 03. Cases evaluated as per revised evaluation system dated 28.09.2016. The applicant's candidature rejected mainly on ground that all family members on date of death of employee i.e. 01.01.2013, applicant exceeded maximum age limit for appointment to available vacancy. The elder son of the deceased employee was already in permanent government employment in IAAD at the time of death of the deceased employee and posted as Senior Auditor. However, applicant did not disclose the fact of earning member in the application regarding details of affidavit. So also family managed 13 O.A. No. 3082/2022 to sustain for more than eight years since 01.01.2013. Hence, the DSC on 02.02.2022 (Annexure R-11) rightly rejected candidature of applicant for CGA. On fifth evaluation, there is no endless compassion for consideration. So also the applicant does not have any vested right to be appointed on CGA being one of members of the deceased employee. The applicant has been duly considered as per the Scheme and not found suitable for CGA.
(vi) Hon'ble Supreme Court in case of State of H.P. Vs. Shashi Kumar, reported in (2019) 3 SCC 653, relevant paragraph 18 and 19, Their Lordships held --
"18. While considering the rival submissions, it is necessary to bear in mind that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. Dependants of a deceased employee of the State are made eligible by virtue of the Policy on compassionate appointment. The basis of the policy is that it recognizes that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. It is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. Where the authority finds that the financial and other circumstances of the family are such that in the absence of immediate assistance, it would be reduced to being indigent, an application from a dependant member of the family could be considered. The terms on which such applications would be considered are subject to the policy which is framed by the State and must fulfil the terms of the Policy. In that sense, it is a well- settled principle of law that there is no right to compassionate appointment. But, where there is a policy, a dependant member of the family of a deceased employee is entitled to apply for compassionate appointment and to seek consideration of the application in accordance with the terms and conditions which are prescribed by the State.
19. The policy in the present case which was formulated on 18 January 1990 categorically speaks of providing employment assistance to dependants of government servants who have died while in service, "leaving their families in indigent circumstances".
The Policy, in other words, is designed to meet the needs of those families where the death of a government servant has left them in indigent circumstances, requiring immediate means of subsistence. The policy recognizes in Paragraph 10 that the benefits which are received by a family on account of welfare measures are required to be considered. Among them, the policy stipulates that family pension and death gratuity are required to be taken into account in assessing the financial circumstances of the family. The Policy does not preclude the dependants of a deceased employee from being considered for compassionate appointment merely because they are in receipt of family pension. What the Policy mandates is that the receipt of family pension should be taken into account in considering whether the family has been left in indigent circumstances requiring immediate means of subsistence. The receipt of family pension is, therefore, one of the considerations which is to be taken into account. Paragraph 10(c) of the Policy sets out the measures 14 O.A. No. 3082/2022 provided by the State which have a bearing on the financial need of the family."
ANALYSIS AND FIINDINGS
27. Heard. This Tribunal has bestowed anxious considerations on the rival contentions of learned counsel appearing for the parties and perused the material placed on record as well as considered the precedents relied on.
28. Admitted facts, in the case that Shri Ramesh Chand, the applicant's father was working as Selection Grade Record Keeper in the office of Principal DCA-II, New Delhi and expired on 01.01.2013. The elder brother of the applicant, Sh. Sanjay Kumar was appointed as MTS in office of respondent on 25.11.2011 under direct recruitment in year 2011, promoted as Clerk on 03.04.2017 and as Auditor on 02.04.2018 and Senior Auditor (Level-6) on 23.12.2021. Application dated 22.01.2013 for CGA was considered in DSC held on 30.10.2013 as per prevailing Scheme for CGA, DoP&T O.M. dated 16.01.2013 and case of applicant was considered and recommended for post of MTS. The recommendation of DSC dated 30.10.2013 of applicant was sent to Headquarter on 13.12.2013. Headquarter Office vide Order dated 31.12.2013, in light of H.Q. Circular No.5 dated 09.02.2012 has stated that granting 30 marks instead of "00" in job column to the applicant is not correct view. Due to reduction of 30 marks for attribute - "Job" - One family member of late Sh. Ramesh Chand is a government servant, the HQ Office taken decision not to grant 30 marks for Job - particulars and marks reduced from 120 to 90 marks and applicant could not be appointed pursuant to DSC meeting dated 30.10.2013 being less meritorious and the sole vacancy year 2013 for MTS was carried forwarded for next year 2014.
29. Undisputedly, case of applicant was considered for CGA in DSC meetings held on 30.10.2013, 16.07.2014 considered and deferred due to non-availability of vacancies, dated 08.01.2015 - deferred for consideration against future vacancy in the next one year, 15.03.2018 for panel year 2017-2018 against one available vacancy but again deferred due to non-availability of vacancy. Again 15 O.A. No. 3082/2022 applicant submitted application pursuant to letter dated 26.02.2021 for CGA and DSC meeting held on 02.02.2022 and applicant case was ultimately rejected and no further consideration for CGA and case stands closed vide impugned Order dated 23.06.2022 (Annexure A-2).
30 Dispute in the present case is that mother of the applicant submitted application dated 22.01.2013 (Annexure A-3) for CGA and disclosed that her eldest son is employed and living separately and not supporting deceased employee family. DSC meeting held on 30.10.2013, interview of applicant taken. After considering entire case of applicant, DSC arrived at conclusion in meeting dated 30.10.2013 (Annexure A-1) that applicant is suitable for the post of MTS, PB-I, GP Rs.1800/- and recommended case for appointment on compassionate grounds to the post of MTS against single vacancy. The stand of the respondents that in accordance with the Scheme for CGA recommendations of the DSC dated 30.10.2013 was forwarded to Headquarter - competent authority for final decision. H.Q. vide letter dated 31.12.2013 has stated that evaluation of candidature of assets/liabilities of family of deceased and granting 30 marks instead of "00" in column to the applicant is not correct in view of Office Circular dated 09.02.2022 for CGA, Applicant's revised score reduced to 90 marks from 120 marks by DSC held on 30.10.2013 and which was not the highest score in year 2013 and could not be appointed. Whereas, the stand of the applicant that about earning member of family of deceased employee was already made on 22.01.2013 and reason to reduce 30 marks for job is afterthought. So also DSC dated 30.10.2013 ought to have given 30 marks instead of 20 marks for immovable property- particulars-as there is no immovable property in name of applicant and deceased employee had an ancestral house in the village in name of five share holders.
THE ISSUE
31. From the above submissions of learned counsel appearing for the parties and material placed on record, the core issue which arises for consideration is -
16 O.A. No. 3082/2022"Whether respondents have considered the case of applicant in manner provided in the Scheme for appointment on compassionate grounds or not?"
RELEVANT SCHEME
32. Before dealing with the rival contentions advanced at the Bar, it is apposite to quote relevant Scheme for appointment on compassionate grounds applicable as to cases on hand, judgments binding precedents in context of facts and core legal issue -
(A)(i) CONSOLIDATED INSTRUCTIONS ON
COMPASSIONATE APPOINTMENT.
D.O.P.T. O.M. No.14014/02/2012-Estt.(D) dated
16.01.2013.
1. OBJECT:
The object of the Scheme is to grant appointment on compassionate grounds to a dependent 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, to relieve the family of the Government servant concerned from financial destitution and to help it get over the emergency.
3. AUTHORITY COMPETENT TO MAKE COMPASSIONATE APPOINTMENT:
(a) Joint Secretary in-charge of administration in the Ministry/Department concerned.
(b) Head of the Department under the Supplementary Rule 2(10) in the case of attached and subordinate offices.
(c) Secretary in the Ministry/Department concerned in special types of cases.
11. WHERE THERE IS AN EARNING MEMBER:
(a) In deserving cases even where there is already an earning member in the family, a dependent family member may be considered for compassionate appointment with prior approval of the Secretary of the Department/Ministry concerned who, before approving such appointment, will satisfy himself that grant of compassionate appointment is justified having regard to number of dependents, assets and liabilities left by the Government servant, income of the earning member as also his liabilities including the fact that the earning member is residing with the family of the Government servant and whether he should not be a source of support to other members of the family.
(b) In cases where any member of the family of the deceased or medically retired Government servant is already in employment and is not supporting the other members of the family of the Government servant, extreme caution has to be observed in ascertaining the economic distress of the members of the family of the Government servant so that the facility of appointment on compassionate ground is not circumvented and misused by putting forward the ground that 17 O.A. No. 3082/2022 the member of the family already employed is not supporting the family.
13. PROCEDURE:
(a) The proforma as in Annexure may be used by Ministries/Departments/ Offices for ascertaining necessary information and processing the cases of compassionate appointment.
(b) The Welfare Officer in each Ministry/ Department/ Office should meet the members of the family of the Government servant in question immediately after his death to advise and assist them in getting appointment on compassionate grounds. The applicant should be called in person at the very first stage and advised in person about the requirements and formalities to be completed by him.
(c) An application for appointment on compassionate grounds should be considered in the light of the instructions issued from time to time by the Department of Personnel and Training (Establishment Division) on the subject by a committee of officers consisting of three officers - one Chairman and two Members - of the rank of Deputy Secretary/ Director in the Ministry/Department and officers of equivalent rank in the case of attached and subordinate offices. The Welfare Officer may also be made one of the Members/Chairman of the committee depending upon his rank. The committee may meet during the second week of every month to consider cases received during the previous month. The applicant may also be granted personal hearing by the committee, if necessary, for better appreciation of the facts of the case.
(d) Recommendation of the committee should be placed before the competent authority for a decision. If the competent authority disagrees with the committee's recommendation, the case may be referred to the next higher authority for a decision.
(ii) CIRCULAR NO.5 DATED 09.02.2012 OFFICE OF COMPTROLLER AND AUDITOR GENERAL OF INDIA.
SUB-APPOINTMENT ON COMPASSIONATE GROUND.
1. ... ... ..,
2. This office has been receiving complaints from the dependant family members of the deceased employees of this department that some officers are not following these orders in their true spirit. It is, therefore, advised that in order to avoid such complaints, an evaluation system based on a number of parameters prescribed in the scheme with suitable weights assigned to each for consideration of the applicants in a fair and objective manner may be devised for use by the Department Screening Committees. A parameter based model evaluation system is being forwarded in guidance (Annexure -I). The same can be either used as such or modified by the Departmental Screening Committees.
3. It is also stated that compassionate appointments against 5% of total vacancies in Group "C" posts worked out to be filled up by direct recruitment in a panel year as per instructions contained in Para 6 of this office circular letter No.973-NGE(App.)/34-2008 18 O.A. No. 3082/2022 dated 24.12.2008 may be made only to the posts of MTS and clerks. Such appointments may not be made against higher posts.
4. While considering the belated requests for compassionate appointment, it should be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of Government servant in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. Compassionate appointment cannot be granted after a lapse of reasonable period and it is not a vested right that can be exercised at any time in future. The guidelines contained in Para 8 of the DoPT Scheme may be kept in mind and only such cases referred to Hqrs. Office.
5. In deserving cases, even where there is already an earning member in the family, a dependant family member can be considered for compassionate appointment with the prior approval of DAI as provided in Para 10 of the Scheme for Compassionate Appointment. Therefore, if compassionate appointment is considered necessary in such cases, the proposal in this regard may be referred to this office with detailed justification to enable the DAI to ascertain the economic distress of the members of the family having regard to the number of dependents, assets and liabilities left by the Government servant, income of earning member and also his liabilities etc. Also, in such cases, extreme caution should be observed in ascertaining the economic distress of the family members so that the facility of appointment on compassionate ground is not circumvented and misused by putting forward the grounds such as the member of family already employed is not supporting the family.
6. It may also be ensured that if the number of candidates found fit for compassionate appointment by the Departmental Screening Committee exceeds the number of vacancies available for this purpose, preference in offering appointment should be given to the families in which there is no earning member."
THE CASE LAW
33. Hon'ble Supreme Court judgments whose implication was debated, reproduced for ready reference as under:-
(a) In case of Auditor General of India and others versus G. Ananta Rajeshwar Rao, (1994) 1 SCC 192 has held:
"Appointment on grounds of descent clearly violates Article 16(2) of the Constitution; but if the appointment is confined to the son or daughter or widow of the Government servant who died in harness and who needs immediate appointment on grounds of immediate need of assistance in the event of there being no other earning member in the family to supplement the loss of income from the breadwinner to relieve the economic distress of the members of the family, it is unexceptionable."
(b) In Umesh Kumar Nagpal versus State of Haryana and others JT 1994(3) SC 525 has laid down following principles reads as-
19 O.A. No. 3082/2022"(i) Only dependants of an employee dying in harness leaving his family in penury and without any means of livelihood can be appointed on compassionate ground.
(ii) The posts in Group 'C' and 'D' (formerly Class III and IV) are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds and no other post ic. in the Group 'A' or Group 'B' category is expected or required to be given for this purpose as it is legally impermissible.
(iii) The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family of the deceased from financial destitution and to help it get over the emergency.
(iv) Offering compassionate appointment as a matter of course irrespective of the financial condition of the family of the deceased or medically retired Government servant is legally impermissible.
(v) Neither the qualifications of the applicant (dependent family member) nor the post held by the deceased or medically retired Government servant is relevant. If the applicant finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity.
(vi) Compassionate appointment cannot be granted after lapse of a reasonable period and it is not a vested right which can be exercised at any time in future.
(c) In Life Insurance Corporation of India versus Mrs. Asha Ramchandra Ambekar and others, JT 1994(2) SC 183 held that "the High Courts and Administrative Tribunals cannot give direction for appointment of a person on compassionate grounds but can merely direct consideration of the claim for such an appointment."
(d) In case of Himachal Road Transport Corporation versus Dinesh Kumar (JT 1996 (5) SC 319) and Hindustan Aeronautics Limited versus Smt. A. Radhika Thirumalai (JT 1996 (9) SC 197) held: "appointment on compassionate grounds can be made only if a vacancy is available for that purpose."
(e) In case of Local Administration Department versus M. Selvanayagam @ Kumaravelu, (2011) 13 SCC 42. Their Lordships observed:-
"An appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependents and the financial deprivation caused to the dependents as a result of his death, simply because the claimant happended 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."
(f) In case of State of Himachal Pradesh and Another Vs. Shashi Kumar reported in (2019) 3 SCC 653. Relevant paragraphs 18 and 19 reads as -
"18. While considering the rival submissions, it is necessary to bear in mind that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. Dependants of a deceased employee of the State are made eligible by virtue of the Policy on compassionate appointment. The basis of the policy is that it recognizes that a 20 O.A. No. 3082/2022 family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. It is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. Where the authority finds that the financial and other circumstances of the family are such that in the absence of immediate assistance, it would be reduced to being indigent, an application from a dependant member of the family could be considered. The terms on which such applications would be considered are subject to the policy which is framed by the State and must fulfil the terms of the Policy. In that sense, it is a well-settled principle of law that there is no right to compassionate appointment. But, where there is a policy, a dependant member of the family of a deceased employee is entitled to apply for compassionate appointment and to seek consideration of the application in accordance with the terms and conditions which are prescribed by the State.
19. The policy in the present case which was formulated on 18 January 1990 categorically speaks of providing employment assistance to dependants of government servants who have died while in service, "leaving their families in indigent circumstances". The Policy, in other words, is designed to meet the needs of those families where the death of a government servant has left them in indigent circumstances, requiring immediate means of subsistence. The policy recognizes in Paragraph 10 that the benefits which are received by a family on account of welfare measures are required to be considered. Among them, the policy stipulates that family pension and death gratuity are required to be taken into account in assessing the financial circumstances of the family. The Policy does not preclude the dependants of a deceased employee from being considered for compassionate appointment merely because they are in receipt of family pension. What the Policy mandates is that the receipt of family pension should be taken into account in considering whether the family has been left in indigent circumstances requiring immediate means of subsistence. The receipt of family pension is, therefore, one of the considerations which is to be taken into account. Paragraph 10(c) of the Policy sets out the measures provided by the State which have a bearing on the financial need of the family."
34. Now again coming to the facts of the case in hand that Shri Ramesh Chand, applicant's father died in harness on 01.01.2013 working as Selection Grade Record Keeper. Application dated 22.01.2013 for CGA to the applicant submitted with disclosure that the elder son of deceased employee is a government servant residing separately with his family. The DSC meeting held on 30.10.2013, application of present applicant was also placed for consideration for CGA to the post of M.T.S., Group "C" for one vacancy year 2013 in the cadre of MTS, GP Rs.1800/-.
35. The DSC held on 30.10.2013 received all cases for CGA based on prevailing instructions O.M. dated 09.10.1998, 28.12.1999, 09.02.2012, 09.03.2009, 26.07.2012, 16.01.2013 and 30.05.2013.
21 O.A. No. 3082/2022So also DSC examined relevant records and personal interview to assess eligibility for the post and found the applicant suitable for the appointment to the post of MTS and recommended name for CGA.
36. On approval of Principal Director, case of the applicant was forwarded to office of respondent no.1 on 13.12.2013 with documents, report of DSC held on 30.10.2013, specifically mentioning the fact that as per Para 10 of DoP&T OM dated 09.10.1998 and Para 5 of H.Q. Circular dated 09.02.2012, in deserving cases, even where there is already an earning member in the family, a dependent family member can be considered for CGA with prior approval of DA-I. So also in present case one family member of deceased employee is already in government service and not supporting them financially.
37. The Competent Authority further considered recommendations of DSC held on 30.10.2013 and did not find evaluation of the applicant correct so far relates to particular - "Job" and held not entitled for 30 marks instead "00" was awarded as per Circular No.5 dated 09.02.2012. For year 2013, no appointment could be made as applicant score was reduced and not the highest score in year 2013, as next highest score was 115 - Ms. Sujata. The extract of Order dated 31.12.2013 for ready reference is reproduced as -
" वषय: Appointment on Compassionate Ground. महोदय, मुझे उपयु त वषय पर आपके कायालय के अध शास. प सं या ADMN./12- 41/2011/Part-1/142 दनांक 13/12/2013 के संग म नदे शानुसार यह कहना है क :-
While evaluating candidate on Assets/Liabilities of the family of the deceased Govt. servant and short listing application for appointment on compassionate grounds, granting 30 marks instead of "00" in job column to Shri Devender Kumar s/o late Ramesh Chand, SGRK is not correct in view of the instructions contained in this office circular letter No.109-Staff(App-II)/87-2011-Vol.I dated 09.02.2012.
भवद य Sd/-
(मगन लाल ता कार ब. शासन अ धकार / टाफ हक़. ( नयम)"
[Emphasis supplied] 22 O.A. No. 3082/2022
38. From bare Perusal of above order dated 31.12.2013 issued by the office of C&AG/respondent No. 01 it is clear as noon day that in light of criteria for a balanced and objective assessment of the financial condition of the family assets, liabilities and presence of an earning member. The competent authority in light of circular No. 05, dated 09.02.2012 also extracted hereinabove came to the conclusion that the applicant was not entitled for 30 marks in job column and instead "00" marks ought to be given. If there was no job in the family than 30 marks should have been given otherwise "00" points. Circular dated 09.02.2012 stipulates that if there is a earning member in the family than preference be given to other families, without earning member. Resultantly, in case of the applicant total score reduced to 90 marks from 120 marks, which was not highest for Panel Year 2013. Hence, no offer of appointment was issued to the applicant.
39. Applicant's case for CGA was again considered for the second time in DSC meeting held on 16.07.2014 against one vacancy of MTS as per Circular No.5 dated 09.02.2012. Applicant scored total marks 100 out of maximum 200 marks. The DSC held on 16.07.2014 granted "00" marks for "Job" particulars and 20 marks for immovable property. The applicant is disputing the award of 20 marks for immovable property and claiming 30 marks. But it is the admitted fact that there is one ancestral house of 80 sq. yards in the co-ownership of the name of deceased employee, i.e., father of applicant in Rewari (Haryana) and by operation of law there is share of the applicant in this ancestral property of deceased employee. In view of the admitted fact related to ancestral house of 80 sq. yards in name of father of applicant being a share holder, I do not find any infirmity in awarding 20 marks for "immovable property" by DSC held on 16.07.2014 and it cannot be said that there is no immovable property in name of deceased. Ms. Sujata scored 130 marks as highest and was recommended for appointment against one vacancy for year 2014 and case of applicant deferred for next DSC subject to availability of vacancy.
40. The case of applicant could not be taken up as there was no vacancy in 2018-2019, 2019 and 2020 and no DSC was constituted.
23 O.A. No. 3082/2022DSC dated 08.01.2015 met for CGA for year 2015 since there was no vacancy for year 2015 and recommended case of applicant for consideration against future vacancy in the next year.
41. The DSC meeting was held on 15.03.2018 to assess the suitability of nine candidates against one vacancy for 2017-2018 and included case of applicant as deferred case. On overall assessment, DSC recommended name of Ms. Nisha Kumari, with 110 marks and four cases deferred for availability of future vacancies including name of present applicant with 80 marks.
42. Applicant was asked to re-submit application by 15.03.2021 in prescribed proforma for CGA, assets, liabilities, particulars of family members, immovable property, job, if any, of family member in government service etc. Applicant submitted the prescribed application as evident from Annexure A-7. DSC meeting held on 23/27 December, 2021 was deferred for 2/7 February, 2022. DSC meeting held on 02.02.2022 to assess suitability for fifth time in case of applicant among total seven candidates.
43. DSC meeting held on 02.02.2022 based on evaluation criteria in terms of H.Q. Circular No.34 dated 28.09.2016 (Annexure R-10), whereby a fair objective consideration by DSC, model evaluation system of 200 marks in Circular No.5 dated 09.02.2012 has been reviewed. Head Quarter Circular No.34 dated 28.09.2016 for CGA- clarification-revised model evaluation system based on various parameters Annexure-I for candidates where deceased employee died in harness on or before 31.12.2015 and in cases of death in harness on or after 01.01.2016 - Annexure-II - revised evaluation system for short-listing for fair and objective manner consideration.
44. Now examining the case of applicant considered by DSC held on 02.02.2022. Based on revised evaluation on criteria in terms of H.Q. letter dated 28.09.2016, and scores obtained, financial position, dependency status, status of employment and in general emergent need for appointment on CGA, applicant scored 80 marks out of maximum 165 marks. Recommendations of DSC held on 02.02.2022, in case of the applicant for ready reference extracted as under:-
24 O.A. No. 3082/2022"Table 2: Scores obtained and Recommendations of the Committee Sl.No. Name of the applicant Score obtained and with Unique Recommendations of the Committee registration number and relation to the deceased employee.
2 Sh. Devender Kumar Score Obtained: 80/165 son of Late Sh. It was observed that all the Ramesh Chand, Ex- dependent family members including SGRK the applicant (D.O.B. 21.05.1984) (DELINFRA02) were major at the time of death (01.01.2013) of the deceased employee and applicant had already exceed the maximum age limit for appointment to available vacancies.
Further, a son of the deceased employee was a permanent government employee in IAAD at the time of death of deceased employee and is currently posted as Senior Auditor. However, details of earning ember have not been disclosed by the applicant, in its application/affidavit submitted regarding the family members. It was also seen that the deceased employee Late Shri Ramesh Chand expired on 01.01.2013 and the family has managed to sustain itself for more than eight years.
In view of the above, the Committee recommends the case to be rejected as the applicant is not in a dire need to relive the family of the deceased employee from financial destitution and to help it get over the emergency.
[Emphasis supplied]
45. As evident from the recommendations of DSC held on 02.02.2022, for fifth time consideration was made based on revised evaluation criteria at the prevailing time of the consideration of application for CGA of the applicant. The DSC observed that al dependent family members of deceased including applicant on 01.01.2013 exceeded maximum age limit for available vacancies, a son of deceased employee was a permanent government employee posted as Senior Auditor and family managed to sustain for more than eight years. The DSC dated 02.02.2022 arrived at final decision that applicant's case not of dire need to relieve the family of deceased employee.
46. DSC held on 02.02.2022 rejected the application of the applicant for CGA and based on score more meritorious, five 25 O.A. No. 3082/2022 candidates were recommended. Based on recommendations of DSC held on 02.02.2022, respondents through speaking Order dated 23.06.2022, informed the applicant about rejection of his case.
47. Taking into consideration above aspects and the undisputed fact that case of applicant was considered for five times strictly in accordance with governing Scheme for CGA and DSC on fifth time rejected and informed applicant vide Impugned Order dated 23.06.2022. It is well settled in law that appointment on compassionate grounds is not a right and is an exception to norms of public employment. I am of the view that present OA is devoid of merits and no interference is called for.
CONCLUSION
48. For all the reasons stated above the issue accordingly decided against the applicant and in favour of the respondents. The applicant does not have a matter of vested legal right to appointment on compassionate grounds as his case has already been considered strictly in accordance with governing Scheme.
49. The Impugned Order dated 23.06.2022 (Annexure A2) does not suffer from any infirmity and remain unassailable.
50. Resultantly, OA being devoid of merits is accordingly dismissed.
51. There shall be no order as to cost.
52. As a sequel thereof, pending Miscellaneous Application(s), if any, shall stand disposed off.
(Ajay Pratap Singh) Member (J) /na/