Central Administrative Tribunal - Mumbai
Irshad Baig Tamij Baig vs M/O Defence on 26 October, 2021
1 OA.02/2019
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH,
MUMBAI.
O.A.02/2019
Dated this Tuesday the 26th day of October, 2021.
Coram: Dr.Bhagwan Sahai, Member (Administrative)
Irshad Baig Tamij Baig,
S/o.(Late) Shri Tamij Baig Umer Baig,
(R/at: H.No.614, Gaddi Guda, Cantonment,
Aurangabad - 431 002. .. Applicant.
( By Advocate Ms.Annie Nadar ).
Versus
1. The Union of India, through
the Secretary,
Ministry of Defence, South Block,
New Delhi - 110 011.
2. The Dy. Director,
Directorate General Staff Duties,
SD-7 (Adm. Civ.)
General Staff Branch, I.H.Q. Of
Ministry of Defence (Army),
D.H.Q. P.O., New Delhi - 110 011.
3. The Station Commander,
Staff Cell, Aurangabad,
Aurangabad Cantonment,
Aurangabad - 431 002. .. Respondents.
( By Advocate Shri D.A. Dube ).
Order reserved on : 05.10.2021
Order delivered on : 26.10.2021.
O R D E R
Shri Irshad Baig Tamij Baig, resident of Gaddi Guddam, Cantonment, Aurangabad filed this O.A. on 12.09.2018 seeking setting aside of order of respondents dated 29.05.2018 stating that he is not eligible for employment on compassionate grounds and direction to respondents to reconsider his case. He also seeks cost of this O.A.
2. Summarized facts as stated in the O.A.:
2(a). The applicant is son of late Shri Tamij Baig Ummer Baig working as Conservancy Safaiwala with Cantonment Cell / Board, Aurangabad, who while in service died on 17.04.2003 leaving behind the applicant and his widow Smt.Kanji Fatima. The date of birth of applicant is 01.12.1982. The applicant is 7th class pass. He submitted his application on 29.07.2004 to Respondent No.2 i.e. Dy. Director, Directorate General of Staff Duties, General Staff Branch, IHQ, Ministry of Defence (Army), New Delhi for his appointment on compassionate grounds, from whom a reply was received dated 13.10.2005 refuxing to concede his request. He received another letter dated 13.07.2007 mentioning the procedure to be followed for appointment on compassionate grounds and informing the applicant that he obtained 47 points out of 100 when his case was considered.
2(b). Then he again received a letter dated 30.03.2009 that his case has not been recommended by the Board of Officers and this has been approved by the Competent Authority. However, his case would be considered again in the next meeting. Then again in December, 2009 he received a reply that his case had been considered 3 times by the Board of Directors but finally turned down as he could not be included in select list. His case stands finally closed.
2(c). The applicant again representation on 09.09.2014 to Hon'ble Defence Minister. Then he received letter from Respondent No.4 dated 21.10.2014 that his representation had been sent to Army Headquarters for appropriate action. Vide letter dated 09.03.2015 of Respondent No.2 the applicant was advised to approach the concerned establishment where is father had been working along with fresh application and supporting documents for examination and onward submission to Army Headquarters. The applicant submitted his application again, then his case was forwarded by Respondent No.3 on 25.04.2018 to Respondent No.2 for early action. In response to which letter dated 07.05.2018 his case was returned stating that the applicant was born on 01.12.1982 and presently at that time he was 35 years old and as per S.R.O.70 dated 26.11.2011 he was overage. Then the applicant again submitted representation on 21.05.2018 to Respondent No.2 after which he has received a letter dated 29.05.2018 (Annex-A-1) informing the applicant that he is not eligible for employment on compassionate grounds. It was also stated in reply that a married son is not considered as dependent on a Government servant.
3. Contentions of the parties :
The applicant contends that -
3(a). when he applied at the time of death of his father, the financial condition of his family was not good and, therefore, the employment on compassionate grounds was sought. The point system notified by Ministry of Defence to assess suitability for compassionate appointment is not legally sustainable. As per view taken in the judgment of Principal Bench of the Tribunal in case of Smt.Anar Kali and Anr. Vs. Union of India and Others dated 21.05.2001 in O.A.512/2000;
3(b). as per points system an employee had more children at the time of his death then the dependent family is assigned more points which is against the small family norms. The applicant is not regular employee and at times was appointed as Room Boy with payment of Rs.400/- per month. After the death of the applicant's father his mother is in receipt of family pension Rs.1895/- (Basic) per month and revised from 18.10.2010 to Rs.1275/- (Basic) per month. This amount is insufficient for the applicant's family;
3(c). the respondents have informed the applicant that when his case was assessed on the scale of 100 point he had scored only 47 points and he ranked at 235 and 287 position among the applicants assessed, but as held by the Tribunal in its order dated 25.03.1998 in O.A.521/1997 by this Bench of the Tribunal, the applicant's case should be considered irrespective of the marks obtained as the family is in dire financial condition. Rejection of the applicant's case on the ground of poverty is not correct. Since the applicant has challenged the order of 29.05.2018 in this O.A. filed on 12.09.2018, there is no delay and, therefore, the contention of the respondents that this O.A. is barred by limitation is not correct. The applicant has also relied on Andhra Pradesh High Court decision in Eluri Marthamma Vs. Divisional Railway Manager, reported in 2000(1) ALT 183, holding that in a welfare scheme, there cannot be any limitation aspect.
As per Madras High Court decision in case of C. Jayapal Vs. The Director of Medical Education (W.P.No.744/2003 decided on 27.10.2005), a case for compassionate appointment cannot be rejected on the ground of being overage.
As per order of this Bench of the Tribunal in O.A.No.624/2014 dated 27.11.2015 in case of Union of India Vs.
V.R. Limbore, the O.A. was allowed and this was also upheld by the High Court by dismissing the Writ Petition directing the respondents to reconsider the case of the petitioner without applying the criteria of married son or unmarried son. Therefore, ground taken by the respondents rejecting the applicant's case are not justified. Therefore, this O.A. should be allowed.
The applicant has filed M.A.33/2019 for condonation of delay stating that he had secured 47 points on the points scale but even then his case was not recommended and he has been informed that he is overage and married and he is not dependent on a Government servant. The applicant had applied for compassionate appointment on 29.07.2004 but the respondents had refused to concede the request as per their letter dated 13.10.2005. His case was considered on 13.07.2007 and 30.05.2009 in the next meeting. Then he had made another representation to Hon'ble Defence Minister on 09.09.2014 and in reply to which the applicant was advised to apply again.
Supreme Court decision in case of Ram Sumiran Vs. D.D.C. and others, AIR 1985 SC 606 holding that poverty and illiteracy are sufficient grounds for condoning the delay. After receipt of letter of the respondents dated 29.05.2018 informing the applicant that his case for compassionate appointment is not a fit case. He has approached the Tribunal in time by filing this O.A. and thus there is no delay and, therefore, he has filed this O.A. within four months of receiving latest of the respondents dated 31.05.2018. There is no delay in approaching the Tribunal but considering the DOPT OM dated 26.07.2012 according to which compassionate appointment can be entertained by the Tribunal even beyond the period of limitation. The delay is not intentional and, therefore, it should be condoned.
The respondents in their reply and during arguments contend that -
3(d). the applicant has not approached the Tribunal with clean hands. He has suppressed many material facts. This application is barred by limitation because of delay and laches as it has been filed many years after the death of the applicant's father and the delay has not been explained.
In this O.A. respondents have relied on number of judgments as follows:
(i). P.S. Sadsivawswamy Vs.S/o Tamil Nadu, AIR 1974 SC 2271,
(ii). Jacob Abraham & Others A.T. Full Bench judgments, 1994-
96,
(iii). Ram Chandra Samanta Vs. UOI, 1994 (260 ATC 228),
(iv). S.S. Rathore Vs. S/o M.P. 1989(2) ATC 521,
(v). Bhoop Singh Vs. UOI, IR 1992 SC 1414,
(vi). Secretary to Govt. of India Vs. Shivaram M. Gaikwad (1995) 30 ATC 635 = 1995(6) SLR (SC) 812,
(vii). Ex.Capt. Harish Uppal Vs. UOI, 1994 (2) SLJ 177,
(viii). L. Chandra Kumar Vs. UOI, 1997 (2) SLR (SC) 1,
(ix). AIR 199 SC 564 Dattaram Vs. UOI,
(x). 1996 LLJ 1127 (SC) UOI Vs. Bhagnor Singh (1998) 8 SSC 304 Ramesh Chand Sharma Vs. Udham Singh Kamal & Ors.
(xi). 202 (5) SLR (SC) 307, E. Parmasivan & Ors. Vs. UOI & Ors.
(xii). Chairman, U.P. Jal Nigam Vs. Jaswant Singh, 2007 (1) SLR (SC) 561, (xiii). Bhoop Singh Vs. UOI, AIR 1992 SC 1414. The Supreme Court has categorically ruled that stale
claim cannot be entertained by the Tribunal and this position has already been accepted by this Tribunal in its order dated 12.12.2006 in O.A.92/2006 (Kaushal Kishore Vs. Union of India and others).
In the case of Union of India Vs. M.K. Sarkar, (2010) 1 SSC (L&S) 1126, the Apex Court held that reckoning of date of accrual of cause has to be examined in this case. The cause of action arose for the applicant when his father died on 17.04.2003.
In reply to the O.A. the respondents contend that for appointment on compassionate grounds in Central Government department, DoP&T OM dated 09.10.1998 and further consolidated instructions then issued by 16.01.2013 and then also issued frequently asked questions on this subject on 30.05.2013 clearly pointing out that the objective of the Scheme for compassionate appointment is to grant appointment on compassionate grounds to the families left in penury and without any means of sustainable livelihood to provide relief to the family from financial destitution to get over the emergency.
As per scheme for compassionate appointment issued by DoP&T, such appointments can be made only upto a maximum of 5% of vacancies under direct recruitment quota in Group 'C'. Under this quota while considering requests for compassionate appointment, a balanced and objective assessment of financial condition of families of the applicants has to be made, taking into account the assets and liabilities as per 100 point scale is being implemented. In this 100 point weightage system various parameters are considered to decide the most deserving cases among the applicants. After implementation of the 7th CPC recommendations parameters have been further revised as per Ministry of Defence ID No.19(2)/2017-D(Lab) dated 09.01.2018 consisting of 20 point for quantum for family pension, 10 points for terminal benefits, 5 points for annual income of family from other sources, 10 points for movable / immovable property, 15 points for number of dependents, 15 points for unmarried daughters, 15 points for minor children and 10 points for left over service at the time of death.
The applicant's case was duly considered by the Board of Officers in 2007 at Army Headquarters along with other 257 applicants and the applicant scored only 47 points thus he was placed at rank 235 out of in the list of 258 candidates for 2 vacancies. The applicant case was again duly considered by the Board of Officers in 2009 along with 324 other applicants. The applicant came to be placed at Sr.No.287 in the merit list of 325 candidates against 2 vacancies. In pursuance to applicant's representation dated 09.09.2014 to Prime Minister's Office he again submitted his application in 2018 but the maximum age limit for Group 'C' post being 25 years for general category candidate and 30 years for SC/ST candidate, the applicant being 35 years old in 2018 he was not eligible for employment and, therefore, to his representation, a reply of 29.05.2018 has been sent to the applicant. The penurious condition of the dependent family rest with authority making compassionate appointment and as held by Supreme Court decision dated 04.05.1994 in case of Umesh Kumar Nagpal Vs. State of Haryana and others, 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. Compassionate appointment cannot be granted after a lapse of a reasonable period and it is not a vested right.
As per Supreme Court decision dated 28.02.1995 in Life Insurance Corporation of India Vs. Mrs.Asha Ramchandra Ambedkar and others had held that the High Courts and Administrative Tribunals cannot direct for appointment of a person on compassionate grounds but can merely direct consideration of the claim for such an appointment.
In view of these facts of the case, the O.A. being barred by limitation and the case of the applicant having been considered repeatedly by the respondents but he having ranked very low in the list if eligible candidates for limited vacancies he could not be provided appointment on compassionate grounds and, therefore, this O.A. should be dismissed.
4. Analysis and conclusions :
4(a). As revealed by facts of the case the applicant's case was rejected for first time on 13.05.2005 because he had secured only 47 points against 100 points. As per DoP&T OM dated 16.05.2001 only 5% vacancies under the direct quota can be filled by making appointments on compassionate grounds. The applicant's case was rejected by the respondents as per letter dated 13.10.2005, then he was again informed on 13.07.2007 that there is a procedure for considering the case for compassionate appointment and his case was considered again in 2007 by the Board of Directors of the respondents and even after considering his case 3 times he could not be selected and, therefore, his case was finally closed. The applicant could have challenge that order of the respondents, however, he did not challenged it. Subsequently he has continued to pursue with the respondents and they again considered the case but he could not be provided compassionate appointment because as per the instructions prevailing at that time, a married son was not considered as dependent on deceased employee.
4(b). The applicant has filed this O.A. only after last reply of the respondents dated 29.05.2018 informing him as to why he could not be provided employment on compassionate grounds. This reply is a very detail reply clearly pointing out that the applicant had submitted his case 3 times in the year 2009 and was considered by the Board of Officers in that year, but having scored only 47 marks he ranked 287 in the list out of 325 candidates. Then his application was never received by the headquarters till 2010 and 2017 after revision of the policy. Regarding time-bar the applicant did not submit his application and after attaining the age of 35 years his application was received in 2018. Examination of which reveal that he was overage as per the existing Recruitment Rules for Group 'C' post because of being overage and married son not being dependent on a Government servant he was not found any eligibility for employment on compassionate grounds. Therefore, as rightly contended by the respondents relying upon the views taken in a number of Supreme Court decision, this O.A. certainly suffers from limitation. For the long delay the applicant has not been able to give any satisfactory explanation except claiming that the condition of his family after death of his father was not financially good.
4(c). The contention of the applicant that the point system is not legally sustainable as less points are given when the number of size of the dependent family is small as the points system has not been challenged, and that terminal benefits cannot be considered for compassionate appointment as per the decision in Anarkali. The point system for assessing suitability of an applicant for compassionate appointment is a policy decision of the Government of India as per the instructions of the DoP&T and it has been followed by the respondents uniformly for all the applicants whenever such cases are considered every year.
4(d). The points system takes into account a number of parameters and also only limited number of vacancies becomes available for compassionate grounds, there is no merit in the applicant's contention against this 100 point system. Earlier there was a limit of 3 times for applying for compassionate appointment. It was relaxed later as per the reply of the respondents dated 29.05.2018 but after his case had already been considered in 2005 and 3 times in 2009, the applicant never applied between 2010 and 2017. His case was received by the respondents in the office of Directorate General Staff Duties, Headquarters (Army), New Delhi only in 2018 when he was already 35 years old and thus overage.
4(e). The respondents have replied to the applicant that a married son is not dependent on ex-employee but as per subsequent instructions of DoP&T dated 05.09.2016, a married son can also be considered for compassionate appointment if he otherwise fulfills other criteria laid down in DoP&T OM dated 16.01.2013 and this was to be effective only from 25.02.2015 and the cases of compassionate appointment already settled should not be reopened.
4(f). As the case details reveal, out of 325 candidates, the applicant having received 47 points, he ranked 287 in the list. The applicant's case has been sincerely considered by the respondents atleast 3 times and because of his very low rank in relative merit of the applicants, he could not be provided appointment on compassionate grounds. This action of the respondents was fully justified.
4(g). The applicant is by now 39 years old and, therefore, the respondents cannot be asked to reconsider his case again which had also been considered repeatedly and rejected. Because of death of applicant's father in 2003 and the applicant being already 39 years old and first rejection of his case was as early as 2005, the claim of the applicant has clearly become stale and it cannot be entertained now.
4(h). In the context of compassionate appointments, a gist of DOPT guidelines in different OMs on this subject and guiding principles highlighted in following Apex Court decisions is summarized here.
(i) Auditor General of India and others Vs. G.Ananta Rajeswara Rao, (1994) 1 SCC 192.
(ii) Umesh Kumar Nagpal Vs. State of Haryana and others, JT 1994 (3) SC 525.
(iii) Life Insurance Corporation of India Vs. Mrs. Asha Ramchandra Ambedkar and others, JT 1994 (2) SC 183.
(iv) Himachal Road Transport Corporation Vs. Dinesh Kumar, JT 1996 (5) SC 319.
(v) State of Haryana and others Vs. Rani Devi and others, JT 1996 (6) SC 646.
(vi) Local Administration Department Vs. M. Selvanayagam @ Kumaravelu, Civil Appeal No.2206/2006 dated 05.04.2011.
(vii) The Govt. of India & Anr. Vs. P. Venkatesh, Civil Appeal No.2425/2019 dated 01.03.2019.
(viii) Sanjay Kumar Vs. State of Bihar and others {(2000) 7 SCC
192).
(ix). Manager, State Bank of India and others Vs. Anju Jain (2008) 8 SCC 475.
(x). MGB Gramin Bank Vs. Chakrawarti Singh {(2014) 13 SCC 583}.
(xi). Haryana State Electricity Board and another Vs. Hakim Singh, reported in 1997(8) SCC 85.
(xii). The Hon'ble Supreme Court in W.P. No.8773/2015 dated 27.07.2017.
(i). The object of granting compassionate appointment is to enable the family of the deceased employee to tide over the sudden crisis after death of the bread earner.
(ii). The object is not to give post to a member of such family.
(iii). Mere death of an employee in harness does not entitle his family to such source of livelihood by employment on compassionate grounds. The Government or the public authority concerned has to examine the financial condition of the family of the deceased and only if it is satisfied that without providing employment, the family will not be able to meet the crisis that a job should be offered to eligible member of the family.
(iv). Only dependents of an employee dying in harness leaving his family in penury and without any means of livelihood can be appointed on compassionate grounds. Offering of an appointment on compassionate ground 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). Appointment on grounds of descent is clearly violative of Article 16(2) of the Constitution and only immediate appointment in the event of there being no other earning member in the family to supplement the loss of income and to relieve economic distress of the family members, exceptions can be made for appointment on compassionate ground.
(vi). 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 happened to be one of the dependents of the deceased employee would be directly in conflict with Articles 14 and 16 of the Constitution and, therefore, bad and illegal.
(vii). Compassionate appointment cannot be granted after lapse of reasonable period of time, it is not a vested right which can be exercised at any time.
(viii). Compassionate appointment cannot be offered by an individual functionary on adhoc basis. Extending of the scheme for appointment on compassionate grounds to all sorts of casual and adhoc employees, including those who are working as Apprentices, cannot be justified on Constitutional grounds.
(ix). The consequences, impacts and the denial of rights to other citizens are also to be considered while extending relief under such an exceptional scheme of compassionate appointment. Scope of the compassionate appointment should not be based on an unwarranted sympathy or leniency. However, any such sympathy or leniency shown to a particular person should not have any adverse effect of affecting the rights of other eligible citizens, who are waiting and longing for public employment in this great Nation.
(x). Compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood.
(xi). Appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the normal rule of recruitment to public service posts. It is a concession, not a right.
(xii). Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution.
(xiii). The Government is certainly justified in directing that no claim for compassionate appointment should be entertained beyond a reasonable period of say three years or five years, as the case may be. If a family of the deceased civil servant can survive for long periods entirely on their own, it presupposes that the surviving members have the necessary wherewithal to survive, notwithstanding the departure of the breadwinner.
4(i). After carefully considering the submissions of the parties, and the views taken in the above Supreme Court caselaws, I conclude that the applicant has failed in making out a case for exception to the normal rule of recruitment in his favour to provide him employment on compassionate grounds because of the long and unjustified delay in filing the O.A., and there being no acceptable reasons in the M.A.33/2019 filed for condonation of delay. When considered in terms of the parameters in the above Supreme Court decisions there is no merit in the O.A. and it deserves to be dismissed. Therefore, the O.A. fails.
5. Decision:
The O.A. is dismissed because of unjustified long delay as well as on merits.
(Dr.Bhagwan Sahai) Member (A).
H.