Central Administrative Tribunal - Lucknow
Smt. Sharika Misra Aged About 28 Years ... vs Union Of India Through The Secretary on 20 December, 2013
Central Administrative Tribunal ,Lucknow Bench, Lucknow. Original Application No. 405/2009 This the 20th day of December, 2013 Honble Sri Navneet Kumar, Member (J) Smt. Sharika Misra aged about 28 years widow of Sri Raghvendra Mishra s/o late Sri Jai Shankar Mishra Sorting Postman, Allahabad H.O., D/o Kamla Kar Misra, post r/o House No. 35, Makanduganj, Hodiganj, Near Jalkal , Pratapgarh. Applicant By Advocate: Sri R.S.Gupta Versus 1. Union of India through the Secretary, Department of Post, Dak Bhawan, New Delhi. 2. Chief Post Master General, U.P,, Lucknow. 3. Senior Superintendent of Post Offices, Allahabad. Respondents By Advocate: Sri G.K.Singh (Reserved on 13.12.2013) ORDER
By Honble Sri Navneet Kumar, Member (J) The present O.A. is preferred by the applicant under section 19 of the AT Act with the following releifs:-
a) That this Honble Tribunal may graciously be pleased to direct the opposite parties to consider case of the applicant for appointment on compassionate ground under dying in harness rules immediately.
b) Any other relief deemed just and proper in the circumstances of the case.
c) Allow O.A. with cost.
2. The brief facts of the case are that the applicant is the wife of late Sri Raghvendra Mishra who is the son of late Sri Jai Shankar Mishra. It is pointed out by the learned counsel for the applicant that late Jai Shankar Mishra, who was working as Sorting Postman, Allahabad, Head Office died on 4.1.1999 while he was in service. In March, 1999, itself, widow of late Sri Jai Shankar Mishra applied for appointment under dying in harness rules for Sri Raghvendra Mishra, applicants husband and when nothing was heard, the husband of the applicant preferred an O.A. No. 124/2006, wherein a direction was issued to consider the representation and dispose of the claim of the applicant. Subsequently, the C.P.M.G., U.P., Lucknow communicated that the case of the applicant is under consideration but during this period, i.e. on 13.11.2008, the husband of the applicant also died. As such, the applicant, being daughter-in-law of ex-employee, applied for grant of compassionate appointment and when no communication was received, she preferred the present O.A.
3. The learned counsel appearing on behalf of respondents filed their reply and through reply it was pointed out by the respondents that under the scheme for compassionate appointment, only wife/son/daughter (including adopted sons) and mother or sister in the case of deceased is unmarried employee can be considered for grant of compassionate appointment. Apart from this, it is also pointed out by the learned counsel for the respondents that ex-employee was working with the respondents organization as Sorting Postman in Allahabad Division was due to retire on 31.5.2003 but died prior to that date and the family of ex-employee received an amount of Rs. 2,42,480.00 as terminal benefits and also getting family pension of Rs. 2,000/- per month + DAR as admissible from time to time. Not only this, the case of the applicants husband was considered by the Circle Relaxation Committee but his case could not find place in the list of approved candidates for appointment on compassionate ground within the limited number of vacancies under 5% quota of direct recruitment. Accordingly, the husband of the applicant was informed vide letter dated 9.7.2002. The respondents through reply has also pointed out that after the death of applicants husband, the wife of ex-employee submitted an application dated 17.3.2009 requesting for considering her elder son namely Awdhesh Kumar Mishra for compassionate appointment but since the case of one son of the ex-employee was already considered by the respondents, as such same was not considered and treated as closed. The learned counsel for respondents through reply has also categorically pointed out that daughter-in-law does not have any right for considering her case for grant of compassionate appointment, as such, the O.A. is liable to be dismissed.
4. The learned counsel appearing on behalf of the applicant has filed rejoinder reply and through rejoinder reply, mostly the averments made in the O.A. are reiterated.
5. Heard the learned counsel for the parties and perused the record.
6. Admittedly, the applicants father-in-law was working in the respondents organization and expired on 4.1.99, prior to date of his superannuation and after the said death, the mother of the ex-employee applied for grant of compassionate appointment for his son but that application was also considered and rejected. During the said period, the son of the ex-employee and husband of the applicant also expired, as such, the applicant claims for grant of compassionate appointment. It is also to be seen that the applicant is daughter-in-law of the ex-employee. The learned counsel for respondents has also relied upon a letter dated 12.6.2013 issued to All Chief Post Master General in regard to frequently asked questions (FAQs) on compassionate appointment and reply given by concern Ministry. As per the said questionare, the following questions are important which are reiterated below:-
Question Answer Q.No.2. What is the objective of scheme for compassionate appointment? The objective of the scheme is to grant appointment on compassionate grounds to a dependent family member of a Govt. servant who has died while in service or who is retired on medical grounds before attaining the age of 55 years (57 years for erstwhile Group D employees) , thereby leaving the family in penury and without any means of sustainable livelihood so as to provide relief to the family of the govt. servant concerned from financial destitution and to help it get over the emergency.
Q.No.11 Who are considered dependent family members for the purpose of consideration of appointment on compassionate grounds? Dependent Family Member means:-
a) spouse; or
b) son (including adopted son);or
c) daughter(including adopted daughter);or
d) brother or sister in the case of unmarred Govt. servant; or
e) Member of the Armed Forces, as defined in s.No.3, who was wholly dependent on the Govt. servant/ member of the Armed forces at the time of his death in harness or retirement on medical grounds, as the case may be.
Q.No.21 Against which group of posts a compassionate appointment can be made? Compassionate appointment can be made only upto 5% of vacancies falling under direct recruitment quota in Group C posts (including erstwhile Group D posts) in a recruitment year. The manner of determination of vacancies has been explained in the consolidated instructions on compassionate appointment dated 16.1.2013.
7. Apart from this, it is also argued by the learned counsel for respondents that since the applicant is daughter-in-law of ex-employee who was working in the respondents organization cannot be considered for grant of compassionate appointment as the policy in regard to compassionate appointment is absolutely clear and the daughter-in-law is not included in the category of persons who are eligible for grant of appointment on compassionate ground. The learned counsel for the respondents has also relied upon number of decisions such as i) State of Gujarat and others Vs. Arvind Kumar T. Tiwari and another reported in (2012) 2 Supreme Court Cases (L&S) 795.
ii) Maharani Devi and another Vs. Union of Inida and others reported in (2009) 2 Supreme Court Cases (L&S) 323.
iii) SantoshKumar Dubey Vs. State of Uttar Pradesh and others reported in (2009) 2 Supreme Court Cases (L&S) 224.
iv) Umesh Kumar Nagpal and others Vs. State of Haryana and others reported in (1994) 4 Supreme Court Cases 138
v) Smt. Sudha Jain Vs. State of U.P. and others reported in (2011) 2 UPLBEC 1396.
8. It is also vehemently argued by the learned counsel for the respondents that the compassionate appointment cannot be claimed as a matter of right. It is only for the family to come out of the financial crises due to loss of immediate bread earner.
9. Admittedly, the applicant is the daughter-in-law of ex-employee. The applicants husband who had applied for grant of compassionate appointment has also expired. Now, the question which requires to be determination is whether the daughter-in-law of ex-employee is entitled for grant of compassionate appointment or not. If, I take reference to the master Circular No. 16/1990 issued by the Govt. of India, Ministry of Railways, Rail Mantralaya, Railway Board which is also absolutely clear to the extent that persons eligible to be appointed on compassionate grounds. The relevant provision reads as under:-
iii) Son/daughter/ widow/widower of the employees are eligible to be appointed on compassionate grounds in the circumstances in which such appointments are permissible. Where the widow cannot take up employment and the sons/ daughters are minor, the case may be kept pending till the first son/daughter becomes a major, i.e. attains the age of 18 years , subject to time limits as provided under para (v) of the circular. The benefit of compassionate appointments may also be extended to a near relative/ adopted son/daughter.
10. Subsequently, the Railway Board has issued a circular No. 137/1995 wherein it has been categorically pointed out that the provision for appointment of near relative on compassionate ground in the Railway may be treated as deleted and this was issued by the respondents wherein it is decided as under:-
3. The matter has been examined by the Board who have decided that the DOP&T instructions dated 9.12.1993 quoted above may be adopted on the Railways. With the issue of this letter the provision for appointment of near relative on compassionate grounds on the Railways, contained in Boards letters No. E(NG) III/7B/RC-1/1 dated 25.8.1980 and letters of even number dated 12.12.1990 and dated 16.5.1991 (RBE 102/1991) as also in part III of the Master Circular No. 16 may be treated as deleted.
11. As regards the merit of the case is concerned, the compassionate appointment cannot be claimed as a matter of right. In the case of Umesh Kumar Nagpal Vs. State of Haryana (supra). The Honble Apex Court has been observed as under:-
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 Classes 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.
12. The Honble Apex Court has also been pleased to observe in the case of State Bank of India and Others Vs. Raj Kumar reported in (2010) 11 SCC 661 and has been pleased to observe that the compassionate appointment is not a source of recruitment. It is an exception to general rule, that recruitment to public services should be on basis of merit, by open invitation, providing equal opportunity to all eligible persons to participate in selection process. Further it was observed by the Honble Apex Court as Under:-
8. It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the Rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis.
13. In the case of State of Chhattisgarh and Others Vs. Dhirjo Kumar Sengar reported in (2009) 13 SCC 600, the Honble Apex Court has been pleased to observe as under:-
10. Appointment on compassionate ground is an exception to the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. Nobody can claim appointment by way of inheritance.
14. The letter dated 12.6.2013 and the answer to question No.11 is absolutely clear that who can be treated as dependent family member and the daughter-in-law has not find place in the said clarification.
15. Considering the submissions made by the learned counsel for the parties and also after perusal of the record and the observations of the Honble Apex Court , it is clear that the daughter-in-law is not included in the scheme for compassionate appointment. Apart from this, the compassionate appointment cannot be treated as a matter of right. As such, I do not find any justified reason to interfere in the present O.A. Accordingly, O.A. is dismissed. No order as to costs.
(Navneet Kumar) Member (J) HLS/-