Central Administrative Tribunal - Allahabad
Smt Amina Beguam vs M/O Defence on 10 January, 2023
(Reserved on 04.01.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
Pronounced on 10th day of January 2023
Hon'ble Dr. Sanjiv Kumar, Member (A)
Original Application No. 995 of 2017
1. Smt. Amina Beguam, aged about 50 years, W/o Late
Munna, Ward No. 09, Kalwari Tola, New Jhunsi, Allahabad.
2. Md. Aleem, Son of Late Munna, Ward No. 09, Kalwari Tola,
New Jhunsi, Allahabad
. . .Applicants
Advocate for the applicants : Shri Jitendra Nayak
VERSUS
1. Union of India through the Secretary, Ministry of Defence,
Government of India, New Delhi.
2. Director General of Medical Service (Army), Adjutant
General‟s Branch, integrated Head Quarter of MOD (Army),
„L‟ Block, New Delhi - 110001.
3. Commandant, Military Hospital, New Cantt., Allahabad -
211001.
. . .Respondents
Advocate for the respondents: Shri Rajesh Kumar Pandey
ORDER
This original application is preferred to seek relief to issue a writ order or direction in the nature of Mandamus directing the respondents to quash the orders dated 30.12.2016, 24.01.2017 and 01.05.2017 passed by the respondent nos. 2 and 3. Prayer has also been made for a direction to the respondents to appoint the applicant on compassionate ground in the department in place of his father Late Munna in Military Hospital in other unit in India.
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2. It has been contended that the husband of the applicant no. 1 Late Munna, who was serving in the Military Hospital, Allahabad as Barber, died on 27.08.2010. Thereafter, the applicant no. 1 submitted an application dated 02.04.2013 for appointment of her son Mohd Aleem i.e. applicant no. 2 under the dying in harness scheme. In pursuance of the application dated 02.04.2013, the respondent no. 3 directed the applicant No. 1 to submit the required documents to consider the case of the applicant no. 2 for appointment on compassionate grounds. Thereafter, the applicant no. 1 submitted the required affidavit and report of the Tehsildar regarding the family members and movable and immovable property held by the applicants, copy of the parivar register and a copy of educational certificate regarding passing Maulvi Examination Education conducted by the U.P. Board of Madarasa Education, which is equal to High School Examination. The respondent no. 2 passed the impugned order dated 30.12.2016 stating that since Late Munna, Ex- Barber of Military Hospital, Allahabad died on 27.08.2010 i.e. more than five years back, it was decided to close the case of the applicant keeping in view orders of DOPT and the judgment of Hon‟ble Supreme Court. It is stated that the applicant no. 1 made application on 02.04.2013 i.e. within three years from the death of her husband, hence the contention of the respondent no. 2 that the case of the applicant is closed being five years old is not sustainable in view of the scheme of the Government. 3
3. In the counter, the respondents say that when deceased Munna died, he had one year six months and 12 days of service left. It is stated that the application of the applicant no. 1 was, as per the SOP was forwarded to the Headquarters Madhya Bharat Area (Medical) vide letter dated 21.05.2013 (Annexure CA-2) duly recommended by the Commandant of the Hospital. The Headquarters Madhya Bharat Area (Medical) returned the proposal with observation vide their letter dated 29.05.2013 (Annexure CA-3) and the hospital vide letter dated 12.05.2014 (Annexure CA-4) forwarded the application duly rectified. The Headquarters Madhya Bharat Area (Medical) vide letter No. 530701/CGIM-3B/21 dated 23.05.2014 (Annexure CA-5) forwarded the application to the Headquarters, Central Command (Medical). Few observations were raised by the Headquarter Central Command (Medical) vide their letter dated 03.06.2014 (Annexure CA-6) and returned the application. The objection was rectified and resubmitted through proper channel to DGMS (Army) DG-3B, who raised few observations vide their letter dated 09.07.2014 (Annexure CA-7). The Military Hospital, Allahabad re-submitted the application of the applicant no. 1 to the Headquarters Madhya Bharat Area (Medical) duly rectified vide letter dated 18.10.2014 as soon as the required documents were given by the applicant. It was once again returned to the Headquarters Madhya Bharat Area (Medical) vide letter dated 29.10.2014 and another proposal was forwarded vide letter dated 19.11.2014 (Annexure CA-9) to the Headquarters Madhya Bharat Area (Medical).
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4. It is stated by the respondents that the application duly rectified was forwarded by the Headquarters Madhya Bharat Area (Medical) vide their letter dated 26.11.20214 to the Central Command. Same was forwarded by the Headquarter, Central Command (Medical) vide letter dated 24.02.2015 to DGMS (Army)/DGMS-3B (Annexure CA-10). On 26.12.2016, reply from the DGMS (Army)/DGMS-3(B) was received which states as under: -
"The case for employment assistance on compassionate grounds in respect of Shri Mohd. Alim was considered by the Board of Officers held in May 2015. As per Govt. of India orders, the Board prepared a comparative merit list of all similarly placed applicants. His case could be recommended by the Board, as his name figured in the comparative merit list well below the number of vacancies which could be utilized for the purpose, as per rules. In the Selection Board held in May, 2016, the committee noted that as per rules, the object of the scheme is largely related to the need for immediate assistance to the family of Government servant in order to relieve it from economic distress. The Hon‟ble Supreme Court‟s judgment dated May 4, 1994 in the case of Shri Umesh Kumar Nagpal vs. State of Haryana and others has laid down that 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. As per order of 5 Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Deptt of Personnel & Training, 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 considering the fact that the death took place long back, say 05 years or so. Since, Late Shri Munna, Ex-Barber of MH, Allahabad father of Shri Mohd. Alim expired on 27.08.2010 i.e. more than five years back, it was decided to close the case of the applicant keeping in view the orders of Deptt of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions, Govt. of India and the judgment of the Hon‟ble Supreme Court of India."
5. Relying upon the judgment of Hon‟ble Supreme Court dated 04.05.1994 in the case of Umesh Kumar Nagpal Vs. State of Haryana (Annexure CA-11) the respondents states that the decision of non-consideration of case of the applicant no. 2 for appointment on compassionate grounds is just, proper and in accordance with rules. The decision communicated vide DGMS (Army)/DGMS-3B letter dated 30.12.2016 is not illegal and against the scheme of compassionate appointment issued by the DOPT vide OM No. GI, Dept of Per & Trg OM No. F No. 14014/02/2012-Estt(D) dated 16.01.2013.
6. The respondents further emphasized while considering belated request, it should however, be kept in view that the 6 concept of compassionate appointment is largely related to the need for immediate assistance to the family of the Govt. 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. The respondents further say that there has been adequate delay of submitting the application of two and a half years after death of the Govt. servant Munna for compassionate appointment. They further say that the enclosures of the family details which were placed before the Committee for the year 2015-2016 were supplied by the applicants and it was considered by the Board of Officers held in May 2015. As per Govt. of India order, the Board prepared a comparative merit list and his case could not be recommended by the Board as his name figured in the comparative merit lists well below the number of vacancies. In the Selection Board held in May 2016, the Committee noted that as per rules, the object of the scheme is largely related to the need for immediate assistance to the family of the Govt. servant in order to relieve it from economic distress. The Hon‟ble Supreme Court in the judgment of Umesh Kumar Nagpal (Supra) has laid down that 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. Thus, the order is passed as per the scheme of the DOPT and there is no violation of provisions of scheme. They further emphasized that the documents clearly states that Smt. Amina Begum (applicant 7 no. 1) has monthly income of Rs. 15,184 as a family pension. She holds a property of Rs. 3.65 Lakhs. The income of other family members, who are older than20 years, have not been reflected on record. Hence, none of the reliefs claimed can be granted to the applicants.
7. In the Rejoinder, the applicants state that the respondents have illegally not considered the case of the applicant no. 2. It is further stated that order has been passed in a casual manner without considering the case of the applicant legally though the limit of three times have also been removed by the Hon‟ble High Court at Allahabad in the case of Hari Ram Vs. Food Corporation of India. It is further stated that the letters dated 24.01.2017 and 01.05.2017 are not the orders as per instructions in the matter. However, all the rejection orders have not been passed as per requirements of the instructions issued from the higher authorities as well as judicial pronouncement, therefore, the impugned orders are liable to be quashed. It is further stated that there was no delay in submitting the application for appointment of applicant no. 2 and it was submitted as per DOPT O.M dated 16.01.2013.
8. I have heard the arguments of learned counsel for the parties and carefully perused the records produced before the court.
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9. Learned counsel for the applicants mainly relied upon the DOPT O.M F No. 14014/3/2011 dated 26.07.2012 where time limit of three years have been relaxed. The applicants have some time interpreted as more than three years and some time more than three times to be considered by the appropriate committee for compassionate appointment. They further relied on order of this Tribunal dated 26.04.2013 passed in OA No. 430/2013 - Tota Ram Vs. UOI & Ors where direction was given based on the relaxation of three years period and to consider the representation of the applicant therein.
10. On the other hand, learned counsel for the respondents relied on the ratio of judgment in WRIT-A No. 23193/2018 - Smt. Poonam Yadav Vs. State of U.P and others quoting the judgment in the case of Shiv Kumar Dubey Vs. State of U.P 2014 (2) ADJ 312 clarifies that the second proviso to Rule 5 requires an applicant, who invokes the power of dispensation or relaxation under the first proviso of the time limit of five years, to make out a case of undue hardship by elucidating in writing with necessary documentary evidence and proof, the reasons and justification for the delay. The Government may, in an appropriate case, when it is satisfied on the basis of the material that a case of undue hardship is made out, exercise the power which is conferred upon it under the first proviso of Rule 5 of the Rules but this power has to be exercised where a demonstrated case of undue hardship is made out to the satisfaction of the State Government. Based on that the Court find no ground 9 warranting interference with the order impugned and the Writ Petition was dismissed.
11. Learned counsel for the respondents further relied on an order passed in Special Appeal No. 1206/2018 - Poonam Yadav Vs. State of UP and two others , wherein the Division Bench relying upon the Full Bench judgment in the case of Shiv Kumar Dubey and others Vs. State of U.P -2014 (2) ADJ 312 has laid down the principle for grant of compassionate appointment and dismissed the Special Appeal. It has been held that the provisions for grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee forever. As a matter of principle there is no general right which can be asserted that a member of the family has to be given compassionate appointment. The rules provides the exceptions. The facts and circumstances of the case do not carve out any exception which has been laid down by the Courts innumerable time.
12. It is an undisputed fact that the case of the applicant is not rejected because of delay in filing the application but because it was considered by the two successive appropriate Committees wherein, on merit in 2015 his case was not considered and in 2016 as the applicant could not substantiate immediate urgency as five years had passed since the death of the father. In 2015, the applicant‟s case in the comparative merit list was well below the number of vacancies which could be utilized for the purpose, 10 as per rules, the same did not get selected. The case of the applicant was considered via-a-vis similarly placed applicants by the Board of Officers and as per Govt. of India orders, the Board prepared a comparative merit list of all similarly placed applicants. His case could not be recommended by the Board, as his name figured in the comparative merit list well below the number of vacancies which could be utilized for the purpose, as per rules. In the Selection Board held in May, 2016, the committee noted that as per rules, the object of the scheme is largely related to the need for immediate assistance to the family of Government servant in order to relieve it from economic distress. The Hon‟ble Supreme Court‟s judgment dated May 4, 1994 in the case of Shri Umesh Kumar Nagpal vs. State of Haryana and others has laid down that 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.
13. As per order of Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Deptt of Personnel & Training, 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, considering the fact that the death took place long back, say 05 years or so. Today, the time lapse after the death of the deceased government servant is more than a decade. No procedural lapses, violation of the principles of natural justice and malafide 11 is pointed out in the case. Hence, I do not find any merit to interfere with the orders of respondents.
14. In view of the foregoing reasons and the law laid down by the Hon‟ble Apex Court in the case of U.K. Nagpal (Supra), I do not find any merit in the case of the applicants and the OA is liable to be dismissed. Accordingly, the OA is dismissed.
15. No order as to costs.
(Dr. Sanjiv Kumar) Member (A) Anand...