Central Administrative Tribunal - Lucknow
Mohammad Anwar Hashmi Aged About 26 ... vs Uoi Through Secretary Deptt. Of Post Dak ... on 25 February, 2011
Reserved
CENATRAL ADMINISTRATIVE TRIBUNAL LUCKNOW BENCH LUCKNAOW
ORIGINAL APPLICATION NO: 132/2010
This, the 25th day of February, 2011
HONBLE SHRI D.C. LAKHA, MEMBER (A)
1. Mohammad Anwar Hashmi aged about 26 years s/o Late Abdul Saeed Hashmi Ex. Postal Assistant Mainpuri Head Office Mainpuri R/o village & P.O. Sikandarpur District Mainpuri.
2. Smt. Afroj Fatma W/o Abdul Saeed Hashmi Ex. PA Mainpuri H.O. R/O Village & PO Sikandarpur District Mainpuri U.P.
Applicants
By Advocate Shri R. S. Gupta.
VERSUS
1. UOI through Secretary Deptt. Of Post Dak Bhawan New Delhi.
2. Chief Postmaster General U.P. Lucknow.
3. Superintendent of PO Mainpuri.
Respondents
By Advocate Shri S. K. Awasthi
ORDER
BY HONBLE SHRI D.C. LAKHA, MEMBER-A
1. This O.A has been preferred to seek the following relief(s):-
(a) That this Honble Tribunal may kindly be pleased to quash the orders on 4.2.10, 15.4.2010 and 26.7.2010 as contained in annexure No.1, 1A and 1B and also graciously be pleased to direct opposite parties to reconsider case of applicant in the light of above facts specially in the light of observation made in annexure No. 18,19 and 20 judgment of the Hon. High Court Lucknow Bench & judgment of Hon. Central Administrative Tribunal Cuttuck Bench and Central Administrative Tribunal Lucknow Bench.
(b) any other suitable order may also be passed as deemed just & proper in favour of applicant.
2. The facts of the case, briefly stated are that Late Abdul Saeed Hashhmi P.A. Mainpuri, father of the applicant No. 1 and husband of applicant No. 2, died in harness on 19.8.97 leaving behind 7 dependents. The applicant No. 1, at the time of death was about 16 = years and accordingly, his mother submitted an application dated 17.7.97 to the respondents that her son (applicant No. 1) may be considered for appointment under dying in harness rules when he would attain the age of 18 years. Respondent No. 3 intimated the applicant No. 2 (wife of the deceased) about the entitlements, including the employment on compassionate ground, available to the department (Annexure 4). The mother of the applicant also requested the CPMG UP, Lucknow and Chief Minister UP, Lucknow for appointment on compassionate ground. As required by respondent No. 3, the income certificate from the Tahsildar with copy of Khatauni was submitted (Annexure 8,9 and 10). But his case for compassionate appointment was rejected by respondent No. 3 in spite of the fact that the family was facing acute financial problem and depending only on family pension of Rs. 2821/- only per month. Taking into account, 7 dependents, none earning members, only family pension could not sustain family after the death of the government official i.e. late Abdul Saeed Hashmi. The representation for employment on compassionate ground has been submitted for more than one time. In one of the rejection letters from Respondent No. 3 dated 4.9.2002, the reasons given for rejection are as under:-
(i) The Ex-official expired in 1997;
(ii) Family of ex-employee is getting family pension @ Rs. 2312/-per month;
(iii) Terminal benefit to the tune of Rs. 203224/- has been paid to the family;
(iv) There is one house with the family to live in;
(v) Family possessed agricultural land of 1/0 Acres.
3. The other two letters dated 17.7.2002 and 9.5.2005 have also been sent from respondent No. 3 to the applicant rejecting the request for employment. After rejection by respondent No. 3, the applicants represented to CPMG UP, Lucknow on 25.7.2005 and D.G. Posts, New Delhi on 18.12.2006 through the M.P. (Lok Sabha). It was acknowledged by the respondents that the representation of the wife of the deceased has been listed to be put before the next screening committee of the Circle Relaxation Committee (C.R.C.). But no decision thereafter was received even after the expiry of more than one year. Repeated representations have been made stating indigent status of the family and the liability of education and marriage (of four daughters) of the dependents could not be managed only with family pension. But the same has not been considered properly. In this connection the applicants have placed reliance on the judgment dated 13.12.2006 in W.P. No. 265 (S/B) of 2006 Ravi Shankar Shukla Vs. UOI & Others decided by Hon. High Court Lucknow Bench (Annexure-18). It is also added in the O.A. that in view of the judgment dated 14.7.2004 in O.A. 1145/2002 Pankajni Sahu and others Vs. SRM N Division & others decided by Hon. Central Administrative Tribunal Cuttak Bench, it was held that 5% quota restriction does not apply in cases prior to 9.10.98 when the amended rules imposing the restriction of 5% of vacancies was introduced. The case of the applicants relates to 1997, as the father of the applicant No. 1 died on 19.8.97.
4. It is also averred in the O.A. that in spite of directions of Honble CAT, Lucknow Bench in O.A. No. 514/2009 vide order dated 11.12.2009, the case was not considered properly and the same has been illegally rejected vide impugned order dated 4.2.10 discriminating the petitioner against others. The ground of discrimination is taken in the O.A. with respect to the CRC meeting held on 16.12.2009. The copy of the extract of the proceedings of this committee is available at Annexure 21. It is stated that while considering the cases of 431 applicants against 93 vacancies, the case of the applicants is not considered properly in view of the acute financial condition and in view of the liabilities of education and marriage of 5 daughters and one son of the deceased. In many of the cases, recommended by the CRC, the number of dependents is much less than that the deceased in this O.A. So it is violative of Article 14 and 16 of the Constitution of India.
5. On notice, the respondents have contested by filing the counter affidavit. The f acts about the employment of the deceased and his having been in service along with the dependents of the family after the death are not disputed. In the counter reply, it is stated that the case of the applicant has been considered for more than one time in view of the scheme circulated by the Department of Personnel and Training O.M. No. 14014/6/94-Estt dated- 9.10.98 as conveyed by Directorate of the Department of Posts. With reference to the scheme, the compassionate appointment can be made up to 5% of the vacancy falling under the direct recruitment quota in any Group C and Group D posts. The primary ground to justify the case for appointment is the penurial condition of the family of the deceased of the government servant. The objective of the scheme is to help and support the family to tide over the emergency and the family must be in distress at the time of death of the earning member. Compassionate appointment cannot be granted after lapse of reasonable time and is not a vested right which can be exercised at any time in future.
6. In view of the orders of the Honble Supreme Court in its judgment in the case of Himachal Road Transport Corporation Vs. Dinesh Kumar, reported in JT-1996(5) SC-319 on 7.5.1996 and Hindustan Aeronautics Ltd Vs. Radhika Thirumalai,reported in JT-1996 (9) SC-97 on 9.10.1996 have ruled out that the appointment on compassionate grounds can be made only if a vacancy is available for in this quota
7. The case of the applicant has been considered as per rules and the law laid down by the Apex Court. While considering the case of the applicant, it was found that after the death of the deceased, Abdul Saeed Hashmi, an amount of Rs. 203224/- has been paid to the survivors by way of terminal benefits from the department. The family is living in their own house and possesses agricultural land for 0.10 acres. The deceased left behind him 7 dependents. The grounds as taken in the counter affidavit, on which the case has been rejected by the respondents, are the same as are already mentioned above in the averments of the applicants. Since the case for compassionate appointment could not be made out on merits, it has been rejected by the respondents.
8. I have heard both the learned counsels and perused the record. The learned counsel for the applicant, in support of his averments in O.A. has argued that as per the scheme, the Welfare Commissioner was supposed to visit the family after the death of the deceased employee, to verify and make assessment of the financial position of the family. But he did not take resort to this action. So the financial position of the family could not be properly reported to the competent authority. The competent authority, thereafter, could not arrive at the correct conclusion about the indigent or penurial situation of the family.
9. Thereafter, in order to complete the conditions and in response to the letters of the respondents, the applicants have been giving every detail or information about the family and the financial condition. The case has been considered for more than one time. On the representation, the delay occurred because of the procedure and inefficiency of the office and not due to any negligence of the applicants. So the plea that the case having been very old, cannot be taken at this point of time. After the order and direction of the Tribunal in O.A. 514/2009 dated 11.12.2009, the matter was not considered in view of the 5 unmarried dependent daughters of the deceased employee. Since, the case was kept pending for consideration, thereafter, the applicant was hopeful that the department would consider taking in view the eligibility for compassionate appointment. But the case was rejected vide letter dated 15.4.2010 from the CPMG Department of Posts, (Annexure -1A) on the ground that the case for compassionate appointment can be kept pending for consideration for three years. Since, this case is already of about 12 years old, the same is finally closed. The decision of the department taken on the basis of the recommendations of C.R.C. meetings on 8th, 9th,10th and 16th December 2009 has been conveyed by the office of the CPMG to Superintendent Post,Mainpuri Division vide letter dated 4.2.10. These meetings of the C.R.C. when 431 cases have been considered and 93 are recommended, the case of the applicant has not been considered properly. This has not been controverted by the respondents. It is also argued by applicants counsel that he has been discriminated vis-`-vis other candidates. The financial position has not been properly considered. It is also argued on behalf of the applicants that terminal benefits cannot be taken into account for the purpose of determining indigent condition of the family. Vacancies which occurred prior to the amended rules would be governed by the old rules and not by the new rules. The respondents counsel has contended that this case for compassionate appointment has been considered for 5 times from 2002 to 2009. But every time, it was found that in view of the policy guidelines of the DOP&T, the requisite norm of penurial condition of the family at the time of the death, income from terminal benefits and pension after the death and limited number of vacancies, the employment on compassionate ground could not be given in this case. Hence, there is no force in the averments and arguments of the applicants in this O.A.
10. After hearing both the counsels and on the basis of materials on record, it is observed that the case for compassionate appointment has been considered from more than one time. It is seen from all the three impugned orders, the case of the applicant was not found fit for employment because it did not meet the conditions laid down in the scheme as well as the law of the land held in various judgments of Honble Supreme Court. Undoubtedly, the right to give employment on compassionate ground is not a vested right and it is only an opportunity to tide over the urgent and emergent penurial financial condition of the family due to which the family is compelled to face the condition of abject poverty. As per the amended rules, the applicants eligible can be considered and given employment only against 5% of the vacancies available at the time of consideration. It is seen from the impugned orders that the income of the family at the death of the government employee was not calculated or computed on the basis of the report of the Welfare Commissioner. One of the grounds taken to reject the case has been that the terminal benefits to the tune of Rs. 203224/- has been paid to the family after the death. On this point, the law in the judgment of Honble Supreme Court in the case of Balbir Kaur and another vs. Steel Authority of India Ltd. And others [2002(2) ATT (SC) 255} and that of the decision in the case of Mina Kumar Mohanty and another Vs. Union of India and Others and Ranka Nidhi Sahoo Vs. Union of India and others [(1994) 2 ATT (CAT) 120] and the case reported in [1002 (2) 1 CJD (AT) 21], it has been held that terminal benefits cannot be taken into account for the purpose of determining the indigent condition of the family. It is evident in view of the law laid down on this point that there is a need for reconsidering this case after proper computation of the financial status of the family and the liability of the deceased employee at the time of the death. Accordingly, there would be a case for looking into the merit of the applicants vis-`-vis others recommended cases (93) on 16.12.2009 so as to ensure that there is no discrimination as alleged by the applicants.
11. In view of the above observations, the O.A. is allowed. Impugned orders dated 4.2.2010, 15.4.2010 and 26.7.2010 are quashed and set aside. The case is remanded back to the respondents to consider this case afresh with special reference to the correct computation of the income of the family without terminal benefits and with the number of dependents. On the whole this case shall be considered and be disposed of after proper scrutiny of merit position vis-`-vis 93 recommended cases by the C.R.C. The respondent No. 1 shall ensure that the case be disposed of by passing a reasoned and speaking order within a period of 3 months from the date of the receipt of the certified copy of this order. No costs.
(D.C. Lakha) Member (A) vidya