Central Administrative Tribunal - Ernakulam
Shan J L vs The Secretary Department Of Space ... on 28 February, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/00116/2020
Tuesday, this the 28th day of February, 2023.
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
Shan. J.L, Aged 32 years, D/o. Late Jayendran P.
Former Sr Project Attendant (Group D), VSSC
Thiruvananthapuram, Residing at Revathy House
Kovil Vilakam, Chirakkal P.O., Chittattumukku
Trivandrum - 695301, Mob: 9995910280 - Applicant
[By Advocate : Mr. U.Balagangadharan]
Versus
1. Union of India, represented by Secretary
Department of Space, Antaraksh Bhavan
New BEL Road, Banglore - 560231
2. Vikram Saraibhai Space Centre
Department of Space
Thiruvanathapuram - 695022
Represented by its Director
3. The Director, Vikram Saraibhai Space Centre
Department of Space, Thiruvanathapuram - 695022
4. The Administrative Officer
VSSC, Department of Space
Thiruvanathapuram - 695022 - Respondents
[By Advocate : Mr. N.Anilkumar, SPC]
The application having been heard on 18.01.2023, the Tribunal on
28.02.2023 passed the following:
O.A.116/2020 2
ORDER
Applicant is the son of late Jayendran P, who was Senior Project Attendant, an employee in Vikram Sarabhai Space Centre, Thiruvananthapuram, VSSC, for short. He died on 14.02.2015 after a short illness, leaving behind wife and two children. The applicant is the elder son of Jayendran, who made Annexure-A5 application on 30.09.2015 for compassionate ground appointment. The application was rejected by the respondents; aggrieved by the same, this O.A. has been filed for calling for records leading to Annexures-A9, A10 and A12 and to set aside the same, to direct the 2nd respondent to consider the application for compassionate appointment commensurate with his qualification untrammelled by the concept of per capita income introduced by the Department of Space and to declare that the applicant is entitled to be appointed on compassionate ground without taking into account the stipulation of per capita income.
2. According to the applicant, the scheme followed by the respondents in the matter of compassionate appointment is Annexure- A6, where the concept of per capita income for the purpose of considering an application is absent, it is inconsistent and repugnant to the objectives of compassionate appointment. Moreover, the family was left behind virtually in a state of poverty as the deceased was the only O.A.116/2020 3 earning member of the family. Neither the applicant nor his brother and mother are employed. The terminal benefits received by the family were not sufficient to meet the liabilities incurred by the father. The family pension received by the mother is also hardly sufficient to run the family in a reasonable manner. They do not have property fetching any income. Thus the family lives in an indigent situation in its full meaning. Moreover, as held by the Hon'ble High Court in Ajith Kumar G.K. v. Canara Bank, Bengaluru [2016 (3) KHC 307] 'the objective of the scheme, as revealed from the first two paragraphs, is to overcome the immediate difficulties arising from the sudden stoppage of main source of income. Reference to the main source of income indicates that merely because the family had another income, it would not disentitle them from consideration for compassionate appointment.' The Department of Personnel is the Nodal Ministry which has prescribed norms for compassionate ground appointment, where per capita income concept is not stated. The income of the family includes income received from other sources, income of other members, income from interest, from business of the family etc. Family pension is excluded from determination. Even if it is included, per capita income of the members of the family is less than the benchmark determined by the respondents. The family pension of the mother of the applicant is Rs.15,166/- as on O.A.116/2020 4 31.12.2015 and the said amount is to be divided by three to arrive per capita income, which comes to Rs.5,055/- only, much below the per capita income fixed by the department in 2016. Therefore, the reasoning stated for rejecting the application for compassionate ground appointment is fallacious and the above stated reliefs are sought against the respondents.
3. The respondents filed a reply denying the allegations. The father of the applicant Jayendran had passed away on 14.02.2015 while holding the post of Senior Project Assistant and was placed in PB-1 in the scale of 5200-20200 with grade pay of Rs.2800/-, and was drawing pay of Rs.13,850/- under the 6th CPC. On his death total amount of Rs.16,30,227/- including DCRG, accumulated amount in GPF, encashment of leave, SAFE scheme, an insurance scheme prevailing in ISRO and CGEGIS was paid to the family. There was a liability of Rs.24,420/-, which was recovered and enhanced family pension of Rs.6,925/- per month was granted to the wife for the period from 15.02.2015 to 14.02.2025 with eligible dearness relief, which was 119% at that time. After implementation of the 7th CPC recommendations, the family pension was enhanced to Rs.17,950/- with effect from 01.01.2016 along with dearness relief. After 15.02.2025, the widow is entitled to get ordinary pension of Rs.10,770/- per month with dearness relief. The contention that the O.A.116/2020 5 lumpsum paid to the family was hardly sufficient to pay the loans is denied. The family is covered by Contributory Health Service Scheme prevailing in the Department of Space/ISRO for availing medical facilities in case of inpatient and outpatient treatments, it is compulsory to enroll all the employees in the scheme. Expenses incurred towards medicines and other procedures etc. in outpatient treatment are reimbursed to the employees; for inpatient treatment it covers schedule of rates prescribed by the department from time to time, the employees and their dependent family members can avail the treatment on credit facility basis from recognised hospitals. The expenses towards treatment as per their eligibility are directly paid to the hospitals by the 2 nd respondent centre. Therefore, the contention of the applicant that liabilities were incurred by the family on account of the medical treatment of the deceased employee cannot be accepted.
4. According to the respondents, it was stated in Annexure-A5 that the applicant had an outstanding liability of Rs.3,00,000/- incurred on a promissory note executed by late Jayendran in favour of one Smt. Leela. But as per the norms, financial distress of the family of the deceased Government servant, liabilities such as Government dues, outstanding loan from Employees Co-operative Society under the Department of Space/ISRO and loan from other approved/recognised O.A.116/2020 6 financial institutions like Co-operative Societies, Scheduled Banks etc. with documentary proof alone are taken into account. Transactions of movable properties are to be intimated to the office within one month of the transaction. Records reveal that the deceased Government servant had not borrowed any money from the said lady.
5. Respondents have further contended that Annexure-A6 scheme produced by the applicant is not a true extract of the scheme introduced by the Department of Personnel and Training. The exact scheme is Annexure-R1(a). As per clause 5 of the scheme, the family has to meet the following eligibility criteria for compassionate appointment:
(a) The family is indigent and deserves immediate assistance for relief from financial destitution; and
(b) Applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules.
But the applicant did not meet the necessary requirements to prove that the family is remaining in indigency and financial distress. Clause 9(c) of the scheme says that the onus of examining the penurious condition of the family rests with the appointing authority making compassionate appointment. The application given by the applicant was duly considered by the respondents. It is within Annexure-R1(a) scheme that appropriate O.A.116/2020 7 conditions can be introduced to determine the financial position/economic distress of the family of the deceased employee. After R1(a) scheme, guidelines were issued by the Department of Space for determining the financial position/economic distress of the family of the deceased employee; in order to bring about uniformity in various centres of ISRO/DOS, Depot of Space devised guidelines/instructions in 2005 and later revised guidelines were issued in 2010, Annexure-R1(b). Revised formula for calculation of per capita income (PCI) was thus issued. In order to overcome the inflationary effect the PCI has been linked with the dearness allowance and accordingly, PCI has been revised every year taking into account the DA approved by the Government from time to time. According to the respondents, on that basis per capita income concept was introduced. Per capita income of a family is calculated by taking into account the earnings including family pension, monthly earning on the death benefits received by the family, the assets and liabilities at the time of death etc. While considering the death benefits, subscription made by the employees towards GPF including the interest, savings fund with interest thereon under CGEGIS, ex-gratia lumpsum compensation if any received, insurance amount from VISWAS (an insurance scheme prevailing in the Department of Space/ISRO) are excluded from computation of per capita income. The dependent family O.A.116/2020 8 member is linked with the dependents of the family under the Contributory Health Service Scheme, a medical scheme prevailing in the Department of Space for providing medical facility to employees and their dependent family members. To consider a person as a dependent family member of the Government servant, he should come within the definition of family, under the CHSS. As per the scheme, son is a dependent member of the family of the Government servant till he starts earning or attains the age of 25 years or gets married, whichever is earlier. In the instant case the applicant was not a dependent at the time of the death of Jayendran as he had crossed the age of 25 years. During 2016, there were only two eligible dependents in the family of Jayendran for calculation of per capita income. The application of the dependent of late Jayendran was considered by the Review Committee for compassionate appointment on 03.05.2016 and found that the per capita income of the family was Rs.10,974/- as against the per capita income of Rs.9,200/- fixed for compassionate appointment for the year 2016. Later, after Annexure-A9 communication dated 30.09.2016, Smt.Laila, the mother of the applicant gave a representation on 23.08.2018 and the case was again considered on 30.04.2019 and the Committee observed that both the sons of Jayendran had crossed the age of 25 years prescribed for dependency criteria and hence as per the O.A.116/2020 9 extant orders the spouse alone was considered as dependent for calculating per capita income. Thus the applicant was found not eligible for appointment since the family was getting per capita income above the benchmark. According to the respondents, the application was rejected on balanced assessment of the situation of the family, in accordance with the extant guidelines. So the respondents have sought for dismissing the application.
6. The applicant did not file any rejoinder.
7. I heard the learned counsel on both sides in detail. The learned counsel for the applicant is very much sceptical about the introduction of the concept of 'per capita income' into the scheme. According to him, it is not available in Annexure-A6, even family pension granted to the widow is liable to be ignored while considering the financial status of the family. Relying on the decision in Union of India and others v. Amrita Sinha [2021 0 Supreme Today (SC) 941] he said that if only the scheme says that the family pension should be reckoned, it can be taken into consideration. Relying on the decision of the Kerala High Court in Amla R. v. Union of India and othrs [2019 (3) KHC 540] he said that terminal benefits cannot be taken into consideration for assessing the claim for compassionate appointment. The counsel also relied on the decision in Ajith Kumar G.K. v. Canara Bank, Bengaluru [2016 (3) KHC O.A.116/2020 10 307]. Basing on the decision of the Supreme Court in Santhosh N.C. v. State of Karnataka and Others [2020(2) KHC 371], he said that norms prevailing on the date of consideration of the application should be the basis for appointment. Thus, referring to Annexures-A7 and A8 respectively he said that on 01.01.2019 the per capita income was Rs.14,060/-, whereas on 01.07.2019 it was Rs.15,093/-. In order to arrive at the per capita income, income of the family had to be divided into three, the number of members of the family. There is no rationale in excluding sons aged above 25 years since there is no upper age for considering an application for compassionate appointment. The respondents did not consider the family situation and the income of the family properly. So, the learned counsel pointed out that per capita income should have been found basing on the income of the family divided by number of members. So, he argued that the legitimate claim of the applicant was rejected on illegal considerations.
8. On the other hand, the learned Standing Counsel submitted that Annexure-R1(a) is the scheme in existence; along with Annexure- R1(a), Annexure-R1(b), norms for identifying the deserving candidates for appointment under the scheme issued by the Department of Space are also being followed. 'Per capita income' is not a criteria introduced by the respondents but they were only following the prevailing guidelines O.A.116/2020 11 and norms. According to the learned Standing Counsel, Contributory Health Scheme is prevalent in VSSC and surviving members of the family of the deceased are entitled to enjoy the benefits. However, since sons, who crossed 25 years do not fall within the definition of 'family', they cannot be entitled to get the benefit. According to the learned counsel, on the date when Annexure-A5 application was considered, the applicant had already crossed 25 years and thus per capita income was arrived at by dividing the family pension into two, that is the widow and the younger son, who was below 25 years. Later, when the mother gave a representation on 23.08.2018, the application was considered again and that was how Annexure-A12 was issued. At that time, the younger son also had crossed 25 years and the family pension of the widow was taken as Rs.25,716/-, which was the per capita income. On both occasions, per capita income of the family was beyond the benchmark, so that the applicant's name was not recommended. In reply, the learned counsel for the applicant submitted that the upper age limit applicable in the CHSS cannot be imported in the Annexure-R1(a) scheme.
9. Admittedly, Jayendran, the father of the applicant, had died after a short illness on 14.02.2015. He was a Senior Project Attendant in the VSSC, a last grade employee. He is survived by his wife and two children. The applicant is the elder son. They belong to Pulaya, O.A.116/2020 12 Scheduled Cast, community. Annexure-A5 application for compassionate appointment was considered and rejected by Annexure-A9 order dated 30.09.2016 on the premise that the family had a monthly income of Rs.15,166/- besides dearness relief and the per capita income was Rs.10,974/-, which is beyond the limit prescribed for compassionate ground appointment scheme. Against this decision, the mother gave a second representation on 23.08.2018 which was considered and rejected by Annexure-A12. At that time, the per capita income limit was Rs.14,060/- and the family had per capita income of Rs.25,760/-. The applicant complaints that his claim for employment assistance was illegally rejected by the respondents.
10. The scope and object of compassionate ground appointment are well settled. The object of granting appointment on compassionate ground scheme to a dependent family member of a Government employee dying in harness is intended to relieve the family from financial destitution and to help them to get over the sudden crisis which resulted in stoppage of regular income due to the unexpected demise of the bread winner of the family. As held by the Hon'ble Supreme Court in Haryana State Electricity Board v. Hakim Singh [(1997) 8 SCC 85], 'the rule of appointments to public service is that they should be on merits and through open invitation; it is the normal route through which one O.A.116/2020 13 can get into a public employment. However, as every rule can have exceptions, there are a few exceptions to the said rule also which have been evolved to meet certain contingencies. As per one such exception relief is provided to the bereaved family of a deceased employee by accommodating one of his dependents in a vacancy. The object is to give succour to the family which has been suddenly plunged into penury due to the ultimately death of its sole bread-winner.' According to the Supreme Court, the object of providing such ameliorating relief should not he taken as opening an alternative mode of recruitment to public employment. In the oft-quoted decision in Umesh Kumar Nagpal and another v. State of Haryana and Others [(1994) 4 SCC 138] the Supreme Court has held as follows:
"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 dependants 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 O.A.116/2020 14 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 dependants 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 eligible member of the family. The posts in Class III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the O.A.116/2020 15 family engendered by the erstwhile employment which are suddenly upturned."
11. In other words, compassionate ground appointment is a need based concept. The object is to help the bereaved family to tide over the immediate financial disruption. Compassionate appointment cannot be given in the face of financial constraints of the employer nor without going into the question of need of the family. If Rules or guidelines have been framed regulating the compassionate appointment, it can be given only in tune with the said guidelines.
12. As always said, it is an exception to the general rule of recruitment to a public post. Since it permits side door entry and being an exception to the general rule, it has to be strictly constured.
13. To put it in other words, in the given circumstances, the look out of the Court is whether the Government employee had died in harness, whether the applicant is a dependent member of the family of the employee, whether there is any scheme in vogue and the application was considered strictly in accordance with the scheme and the guidelines; the Court or Tribunal cannot give a positive direction to the employer to appoint someone to a post. The jurisdiction is supervisory, to overlook whether, while considering the application, the provisions in the scheme or guidelines have been strictly adhered to. If the answer is in the affirmative, the applicant will be liable to be non-suited. O.A.116/2020 16
14. The contentions of the parties have to be evaluated in the above setting. Basing on Annexure-A6, the applicant wanted to say that such a scheme is in vogue, however, his claim was rejected due to extraneous considerations, without considering the scheme. But the respondents have submitted that Annexure-A6 has not been taken from proper source and the actual scheme is Annexure-R1(a) and Annexure- R1(b), that Annexure-A5 application was considered strictly in accordance with the extant scheme and the guidelines. As a matter of fact, Annexure-A6 is a truncated document, and the entire scheme is available in Annexure-R1(a).
15. Annexure-R1(a) insists, among other things, that only the dependents of an employee dying in harness leaving his family in penury and without any means of livelihood can be given appointment under the scheme; the whole object of granting the said appointment is to enable the family to tide over the crisis and relieve the family of the deceased from financial destitution and helping it to get over the emergency. Similarly, as rightly pointed out by the learned Standing Counsel, while considering such an application the competent authority has to satisfy himself that the grant of compassionate appointment is justified having regard to the number of dependents, assets and liabilities of the deceased, income of the earning member and also the liabilities. The O.A.116/2020 17 onus of examining the penurious condition of the family rests with the appointing authority.
16. Such a claim has to be assessed objectively by avoiding subjectivity. Annexure-R1(b) indicates that the Department of Space has issued norms by introducing the concept of per capita income for assessing the eligibility of the candidate under the compassionate appointment scheme. The norms indicate that eligibility is decided basing on the per capita income of the family vis-a-vis the periodical change in rates in DA, as approved by the administrative department. Annexures-A7 and A8 are such periodical communications. Such a norm is introduced for determining the financial position of the family for assessing eligibility. Annexure-R1(b) indicates that 'per capita income is the net monthly income divided by number of dependents as defined under CHSS/CCS(Pension) Rules for the purpose of the family of the deceased employee.' While making such an assessment, children are included in the definition of the family. But a son is eligible only till he starts earning or attains the age of 25 years or gets married, whichever is earlier.
17. To put it in other words, the concept of per capita income is not an innovation made by the respondents while considering Annexure- A5 application. Annexure-R1(b) suggests that it is in vogue from 2005 O.A.116/2020 18 onwards. The documents produced by the applicant also indicate that per capita income changes every year depending upon the change in life index.
18. Thus, Annexure-A5 was rejected through Annexure-A9 finding that the per capita income of the family had crossed Rs.9,200/- on the date when the application was considered. The applicant agrees based on Santhosh N.C.'s case, quoted supra, that the relevant date is the date of consideration of the application. On that date, as evident from documents, prescribed per capita income was Rs.9,200/- whereas the net family income of the applicant was Rs.21,949/-. When Annexure-A5 was filed, the applicant had already crossed 25 years, so that, he was beyond the definition of 'family'. So the net family income was divided by two for finding out the per capita income, which crossed the benchmark, Rs.9,200/-.
19. It seems that Annexure-R1(d) need not be considered, by the time the situation had worsened and the relevant date was the date of consideration of the application, which is reflected in Annexure-R1(c).
20. Compassionate appointment cannot be claimed as a matter of right. As indicated earlier, the Tribunal is only expected to consider whether norms were appropriately followed by the competent authority. Here, after going through the materials, it leave no room for doubt that O.A.116/2020 19 the application was considered following Annexures-R1(a) and R1(b). The applicant could not bring out any arbitrariness, bias or illegality in the consideration of the application.
The Original Application lacks merits and is dismissed. No cost.
Dated 28th February, 2023 JUSTICE K.HARIPAL JUDICIAL MEMBER ds O.A.116/2020 20 List of Annexures Annexure A.1: A true copy of the pay slip showing the pay and deductions of the father of the applicant for the month of February 2014 Annexure A.2: A true copy of the death certificate dated 07.03.2015 Annexure A.3: A true copy of the relationship certificate dated 03.02.2018 showing the surviving legal heirs of the deceased issued by the Tahsildar, Thiruvananthapuram Annexure A4: A true copy of the community certificate dated 23.03.2019 issued by the Taluk Office, Thiruvananthapuram Annexure A5: A true copy of the application for compassionate appointment dated 30.09.2015 of the applicant Annexure A.6: A true copy of the scheme for compassionate appointments OM No.14014/02/2012/Estt. (D) dated 16.01.2013 Annexure A.7: A true copy of Office Memorandum No.A12011/1/2001- 1 (Vol. IV) dated 03.01.2019 issued by the first respondent Annexure A.8: A true copy of the Office Memorandum No No.A12011/1/2001-1 (Vol. IV) dated 02.01.2020 issued by the first respondent Annexure A.9: A true copy of the rejection letter No. No.13.2/16/emp./per dated 30.09.2016 issued by the fourth respondent Annexure A.10: A true copy of the letter No.13.2/17/Emp/per dated 29.06.2017 issued by the 4th respondent Annexure A.11: A true copy of the letter No.13.1/18/Emp/per dated 01.11.2018 of the fourth respondent O.A.116/2020 21 Annexure A.12: A true copy of the letter No. 13.1.19/Emp/per 14 dated 19.06.2019 of the fourth respondent Annexure-R1(a): True copy of OM F No.14014/02/2012-Estt (D) dated 16.01.2013 Annexure-R1(b): True copy of communication No.2/1/5/2001-I(Vol.III) dated 01.03.2010 Annexure R1(c): True copy of PCI Calculation Statement for the year 2016 Annexure R1(d): True copy of PCI Calculation Statement for the year 2019 **************