Orissa High Court
Smt. Draupadi Behera And Anr. vs Union Of India (Uoi) And Ors. on 20 November, 2002
Equivalent citations: 2003(I)OLR45
Author: A.K. Patnaik
Bench: A.K. Patnaik, Pradip Mohanty
JUDGMENT A.K. Patnaik, J.
1. This is an application under Article 227 of the Constitution of India challenging the order dated 8.9.1998 of the Central Administrative Tribunal, Cuttack Bench, Cuttack rejecting Original Application No. 5 of 1998 filed by the petitioners.
2. The facts briefly are that the petitioner No. 1 and petitioner No, 2 are the wife and son of late Iswar Chandra Beherd, Late Iswar Chandra Behera was working as E.D.D.A.-cum-E.D.M.C, in Sabira Branch from 19.1.1971 and died while in service on 25.2.1995 leaving behind his wife, the petitioner No. 1 and five sons including petitioner No. 2. The petitioner No. 1 addressed an application dated 9.6.1997 to the Government of India, Ministry of Communications, Department of Post for compassionate appointment of her son, the petitioner No. 2. By a communication dated 5.9.1997 the said application was rejected by the Government of India, Ministry of Communications. Department of Post. Paragraph-2 of the said communication dated 5.9.1997, a coy of which has been annexed to the writ petition as Arinexure-5 contains the reasons for rejection of the application for compassionate appointment and is quoted herein below :
"2. The case has been examined in this office in consultation with the Chief Postmaster General. Bhubaneswar. lt is reported that all your sons are major. Four of the five sons are married and are engaged in business at Bhubaneswar and Calcutta. The family is also in possession of landed property. In the legal heirship certificate issued by the Revenue Authority, all the five brothers and the widow are shown as the legal heirs of the deceased, Ed Agent. As per the policy guidelines in vogue at present, the family is not in dire financial condition which is one of the considerations for compassionate appointment. Further, there is no guarantee that even if the request of the dependent for compassionate appointment is acceded to, he will not separate himself from the main family and thereby leave them unsupported."
Aggrieved by the said rejection of the application for compassionate appointment, the petitioner Nos. 1 and 2 filed Original Application No. 5 of 1998 before the Central Administrative Tribunal, Cuttadk Bench, Cuttack. A counter affidavit was filed before the Tribunal by the opp. parties. After hearing the counsel for the petitioners and the opp. parties, the Tribunal rejected the said Original Application. The reasons indicated in paragraph-7 of the Judgment of the Tribunal for rejecting the Original Application filed by the petitioners are quoted herein below :
".....Even accepting the submission made by the learned counsel for the petitioner that all the sons have been separated, a case for compassionate appointment to applicant No. 2 is not made out going by the affidavit filed by the applicant vide Annexure-2. It is seen that through this affidavit the deceased employee has divided all his properties amongst his five sons including applicant No. 2 and all of them have been separated from the father's family. The affidavit specifically refers that all his properties have been divided because in future none of the sons will be put into trouble for distributing the same. If we go by the affidavit vide Annexure-2 which is relied upon by the learned counsel for the petitioners then applicant No. 2 has been separated from his father's family during the life time of his father and therefore, on the basis of affidavit vide Annexure-2, applicant No. 2 cannot ask for compassionate appointment under rehabilitation assistance scheme, because by virtue of this affidavit applicant No. 2 has been separated during life time of his father and therefore is no longer a member of the family of deceased employee. In view of the above the prayer for compassionate appointment to applicant No. 2 is held to be without any merit and the same is rejected."
3. Mr. Ganeswar Rath, learned counsel for the petitioner submitted that the aforesaid reasons given by the Tribunal for rejecting the Original Application of the petitioners would show that the Tribunal was of the view that since the petitioner No. 2 has been separated from his father's family during the life time of his father, he cannot ask for compassionate appointment under the rehabilitation assistance scheme. According to Mr. Rath, the affidavit in Annexure-2 referred to in the judgment of the Tribunal only shows that all the properties of late Iswar Chandra Behera have been divided between the five sons and there is nothing in the said affidavit to show that the petitioner No. 2 has been separated from the family of late Iswar Chandra Behera during his life time. On the other hand, the petitioner No. 2 has remained with the wife of late Iswar Chandra Behera all through and the petitioner No. 2, therefore, cannot be treated as one living separately from the family of late Iswar Chandra Behera. Mr. Rath further submitted that the reasons given by the Government of India, Ministry of Communications, Department of Post in the letter dated 5.9.1997 for rejecting the application of the petitioners for compassionate appointment are also not Valid. The reason given therein is that the family of late Iswar Chandra Behera is not in dire financial condition which is one of the considerations for compassionate appointment. Mr. Rath submitted that the annual income of the petitioner No. 1 was Rs. 4800/- and that of the petitioner No. 2 from the agricultural land was Rs. 2000/- and therefore, the total amount available to the petitioners 1 and 2 per annumis only Rs. 6800/- which is not at all sufficient to maintain themselves. According to Mr. Rath, therefore, the financial condition of petitioners 1 and 2 was such that a compassionate appointment was absolutely necessary to rehabilitate the family of late Iswar Chandra Behera. The other reason given in the said letter dated 5.9.1997 of the Government of India, Ministry of Communications, Department of Post for rejecting the application for compassionate appointment is that there was no guarantee that even if the request of the dependent for compassionate appointment is acceded, the petitioner No. 2 will not separate himself from the main family and thereby leave them unsupported. Mr. Rathy submitted that the petitioner No. 2 is prepared to give an assurance that he will continue to remain with the petitioner No. 1 and support her if he is appointed on compassionate ground.
4. Mrs Agrawal, learned Sr. Standing Counsel (Central) on the other hand, sought to sustain the impugned judgment of the Tribunal. She submitted that the Tribunal has rightly come to the conclusion on the basis of the affidavit filed on behalf of the petitioners themselves that all the brothers had separated during the life time of late Iswar Chandra Behera and in view of such separation of all the brothers' the petitioner No. 2 was not entitled to be appointed on compassionate ground on the death of late Iswar Chandra Behera. She also relied on the scheme for compassionate appointment and submitted that the purpose of making compassionate appointment is to support the dependent family members of the deceased Government servant and since in this case, the petitioners had their own income, there was no necessity for giving appointment under the scheme to the petitioner No. 2. She relied on the reasons given by the Government of India, Ministry of Communications, Department Of Post in the communication dated 5.9. 1997.
5. It appears from the letter No. 17-85/93-ED and Trg, dated 2.2.1994 of the Government of India, Department of Posts that the O. M. No. 14814/6/86 dated 30.6.1987 of the Ministry of Personnel. Public Grievances and Pension applies to compassionate appointment cases in respect of sons/daughters/near relatives of deceased Government servants. The said O. M. NO. 14814/6/ 86 dated 30.6.1987 as reproduced in Annexure-7/1 to the writ petition stipulates in paragraph-1 as to whom the scheme for compassionate appointment is applicable. The said paragraph-1 is extracted herein below :
"1. To whom applicable
(a) To a son or daughter of near relative of a Government servant who dies in harness including death by suicide, leaving his family in immediate need of assistance, when there is no other earning member in the family.
(b) In exceptional cases when a Department is satisfied that the condition of the family is indigent and is in great distress, the benefit of compassionate appointment may be extended to a son/daughter/near relative of a Government servant retired on medical grounds under Rule 38 of Central Civil Services (Pension) Rules, 1972, or corresponding provisions in the Central Civil Service Regulations before attaining the age of 55 years. In case of Group 'D' employees whose normal age of superannuation is 60 years, compassionate appointment may be considered where they are retired on medical grounds before attaining the age of 57 years.
(c) To a son or daughter or near relative of a Government servant who dies during the period of extension in service but not re-employment."
In sub-paragraph (a) of paragraph-1 quoted above it is provided that the scheme for compassionate appointment is applicable to a Son or daughter or near relative of a Government servant who dies in harness leaving his family in immediate need of assistance when there is no other earning member in the family. In the letter of the Government of India, Department of Posts No. 17-85/93-ED & Trg. dated 2.2.1994, however, the following clarification has been made :
"(4) In certain cases where there is already an earning member in the family but Huddla/Sarpanch or an MP/ MLA certified that the employed member is living separately and not rendering any financial assistance to the main family, the requests for compassionate appointment may be entertained and considered on merits. In certain cases, the literate dependants/near relatives are neither employed in Government service nor somewhere else but are engaged in cultivation, etc. and not supporting the family of the deceased ED Agent, requests for compassionate appointment in such cases can be entertained."
It will be clear from the aforesaid clarification that where there is already an earning member in the family, but a Member of Parliament certifies that the employed member is living separately and not rendering any financial assistance to the main family, the request for compassionate appointment may be entertained and considered on merits. In the present case, the Member of Parliament, Shri Kartik Mohapatra representing the Balasore Parliament Constituency has certified that all the elder sons of late Iswar Chandra Behera are separated from his Wife, Smt, Draupadi Behera and are not rendering any financial assistance to Smt. Behera and Smt. Behera is now financially distressed. The case of the petitioner No. 1-Smt. Draupadi Behera before the Tribunal and before this Court is that the petitioner No. 2, namely, Purna Chandra Behera is living with her. Thus, the petitioner No. 2 if appointed under the scheme for compassionate appointment cart financially support the petitioner No. 1, i.e., wife of deceased Iswar Chandra Behera. It is true that the petitioner No. 1 is earning an annual income of Rs. 4800/- and the petitioner No. 2 is earning Rs. 2000/- from his share of agricultural land, but the total of the two amount works to Rs. 6800/- per annum which is only Rs. 566/- per month and this is hardly any amount either to support the petitioner No. 1 or the petitioner No. 2. The family of deceased Iswar Chandra Behera is thus in dire financial condition. The view taken in the communication dated 5.9.1997 of the Government of India, Ministry of Communications, Department of Post that the family is not in dire financial condition is a view which no reasonable person would take on the facts of the case. Of course, if the petitioner No. 2 is appointed on compassionate ground, his appointment has to be subject to the condition that he will continue to support the petitioner No. 1, wife of the deceased Iswar Chandra Behera.
6. Coming now to the reasons given by the Tribunal in the impugned judgment, in our considered opinion, the Tribunal should have confined itself to the reasons for rejection given by the Government of India, Ministry of Communications, Department of Post in the communication dated 5.9.1997 which was impugned before the Tribunal and should not have given its own reasons for rejecting the case of the petitioners for compassionate appointment. Nonetheless, since the Tribunal in the impugned judgment has given its reasons, we do not hesitate to deal with the same. The reason given by the Tribunal is that the affidavit in Annexure-2 discloses that the petitioner No. 2 has been separated from his father's family during the life time and, therefore, the petitioner No. 2 cannot ask for compassionate appointment under the rehabilitation assistance scheme. On a perusal of the said affidavit, a copy of which has also been annexed to the writ petition as Annexure- 2,we find that by the said affidavit, late Iswar Chandra Behera has only stated that he has divided all of his properties among his five sons and has not mentioned anywhere that the five sons including the petitioner No. 2 were living separately from him. All that appears to have happened is that out of the five sons, four sons other than the petitioner No. 2 are living separately and the petitioner No. 2 is living with the petitioner No. 1, the wife of the deceased Iswar Chandra Behera. Thus, four sons other than the petitioner No. 2 had separated from the family of deceased Iswar Chandra Behera and those four sons may not be entitled to be considered for appointment under the scheme for compassionate appointment. But the petitioner No. 2 who continues to reside with the petitioner No. 1, the wife of the deceased Iswar Chandra Behera is entitled to such compassionate appointment as he is the one, if appointed would support the wife of late Iswar Chandra Behera. There is, therefore, an apparent error in the judgment of the Tribunal.
7. We, therefore, set aside the impugned judgment of the Tribunal, quash the communication dated 5.9.1997 of the Government of India, Ministry of Communications, Department of Post (Annexure-5 to the writ petition) impugned before the Tribunal and direct the opp. parties to appoint the petitioner No. 2. under the scheme for compassionate appointment with the condition that the petitioner No. 2 will financially support the petitioner No. 1 so long as she is alive. The aforesaid direction will be complied with within a period of three months from today. In case, there is any difficulty in appointing the petitioner No. 2 within the said period of three months, it will be open for the opposite parties to file application for extension of time.
8. In the result, the writ petition is allowed. But in the facts and circumstances of the case, the parties shall bear their own costs,