Central Administrative Tribunal - Delhi
Sarita Mishra vs M/O Agriculture on 7 February, 2023
1 OA No.1663/2021
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 1663/2021
Order reserved on: 22.12.2022
Order pronounced on: 07.02.2023
Hon'ble Mr. Manish Garg, Member (J)
Smt. Sarita Mishra, aged about 51 years,
W/o Late Sh. Ajay Kumar Mishra,
R/o Shop No.113, Hog Market,
Rajendra Place,
Behind Imli Restaurant,
New Delhi-110008.
...Applicant
(By Advocate: Mr. Manindra Dubey)
Versus
1. Union of India,
Through its Secretary,
M/o Agriculture & Farmers Welfares,
Krishi Bhawan,
Dr. Rajendra Prasad Road,
New Delhi-110001.
2. Indian Agricultural Research Institute (IARI),
Through its Director,
Pusa, New Delhi-110012.
3. Farm, Horticulture & Landscape
Operation Service Unit (FOSU),
Through its Head/Officer In-Charge,
Indian Agricultural Research Institute (IARI),
Pusa, New Delhi-110012.
... Respondents
(By Advocate : Ms. Neha Bariagee for resp. No.1
and
Mr. Parveen Swaroop for resp.2 & 3)
2 OA No.1663/2021
ORDER
This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):
"(i) Quash and set aside the impugned Orders dated 31.01.2019 & 22.02.2019 (Annexure A/1) and direct the respondents to appoint the only son of the applicant on compassionate ground, and
(ii) Direct the respondents to pay the due amount of applicant's husband i.e. due salary from September, 2018 to February, 2019, Pension from March, 2019 to December, 2019, Leave Encashment of 2 months, Death Gratuity, benefits from CGEGIS, CGHS facility.
(iii) Award the exemplary costs and compensation of Rs.10 lakhs against the respondents for the violation of the Rights of Persons with Disabilities Act, 2016 and causing cruelty, torture, harassment, inhuman acts against a 100% disable employee during his service and after his retirement also, and
(iv) Grant the litigation expenses to the applicant, and
(v) To pass any further relief or reliefs as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. Brief facts:
2.1 The applicant's husband late Sh. Ajay Kumar Mishra worked on contractual basis as Group-D employee as Skilled Subordinate Staff (SSS) with respondent No.3, i.e. Farm, Horticulture & Landscape Operation Service Unit (FOSU) of Indian 3 OA No.1663/2021 Agricultural Research Institute (IARI) Pusa, New Delhi from 1980 to 1998 and his services were regularized on 01.04.1998.
2.2 In 2016, when the applicant's husband at the age of 57 years was working with Heavy Crane Load Machine, he received serious head injury due to fall of heavy hammer on his head and become unconscious and remained unattended for several hours by the officials of respondent No.3 and later on he was given first aid at Sardar Vallabh Bhai Patel Hospital, Patel Nagar, New Delhi and left at the door of his service quarter by the officials of respondent No.3 after the first aid. 2.3 On 17.04.2018, the applicant's husband at the age of 59 years again received a cut injury at his leg by a keel during working in the office under same situation like 2016 and he was shown at hospital. Doctor advised him for light duty. 2.4 Against the Doctor's advice, the applicant's husband was given the same heavy duty and on 13.08.2018, he again received a head injury during 4 OA No.1663/2021 working in the office under same situation like earlier and he was admitted to hospital. After this injury, he become 100% disable and superannuated on 28.02.2019 and died on 26.07.2019.
2.5 After such incidents, lot of problems were created by the respondents against applicant's husband regarding non-payment of his medical bills, non-payment of his salary in time, non-
providing the CGHS card/benefits etc. 2.6 It is submitted that when he was admitted in hospital, some officials of respondents tried to take his thumb impression on a plane paper and later on ran away when the applicant cried for help, which shows their malafide intention. 2.7 During the absence of applicant's husband, the locker provided by respondent No.3 was broken and his important documents were missing from the locker.
2.8 The respondents stopped the payment of his salary from August 2018 to February 2019 and 5 OA No.1663/2021 release the pensionary benefits to the applicant in January 2020 when she approached the Court of Chief Commissioner for Persons with Disabilities, Ministry of Social Justice & Empowerment. 2.9 In the PPO the date of retirement and date of death of applicant's husband is written as 26.07.2019 instead of 28.02.2019 and 26.07.2019 respectively.
2.10 Applicant made representations on behalf of her husband on 28.12.2018 and 21.01.2019 to the respondents for compassionate appointment of her son which was denied vide impugned order dated 31.01.2019. Another representation made by the applicant's husband dated 05.02.2019 was also rejected vide impugned order dated 22.02.2019. Hence this OA.
3. Per contra, the answering respondents No.2 & 3 have filed their counter reply wherein it is submitted that applicant has filed the OA challenging the order dated 31.01.2019 and 22.02.2019 passed by the respondents whereby 6 OA No.1663/2021 appointment to the applicant's son on compassionate ground has been rejected. The object of the Scheme is to grant appointment on compassionate grounds to dependent family member of a Government servant dying in harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood, to relieve the family of the Government servant concerned from financial destitution and to help it get over the emergency. As per rules, the disabled person has to make an application in the Department for compassionate appointment of any of his permissible legal representatives only till the age of 55 (or 57 for Group D employees). As per Rule 38 of CCS Pension Rules 1972, without prior consent of the Office Incharge, the disability certificate submitted by the disabled person would not be taken into consideration. The late Sh. Ajay Kumar Mishra neither informed the department about his disability nor did he submit any valid disability certificate in the Department within prescribed 7 OA No.1663/2021 time limit. Not only this, in the present case, late Sh. Ajay Kumar Mishra did not submit any such application, within prescribed time limit, in the Department for appointment of his son on compassionate grounds. The object of the Scheme is to grant appointment on compassionate grounds to dependent family member of a Government servant dying in harness or who is retired on medical grounds. The above conditions do not apply in the present case. Late Sh. Ajay Kumar Mishra neither retired on medical grounds nor he died in harness. As such, the son of the applicant is not entitled for appointment on compassionate grounds. The family of the late Sh. Ajay Kumar Mishra is also getting family pension and, therefore, his family is not in penury and cannot be said to be without any means of livelihood. The facts of the present case do not make out a case of the family of financial destitution also.
4. It is submitted that after the retirement of late Sh. Ajay Kumar Mishra, all formalities in respect of payment of pension were completed and the 8 OA No.1663/2021 pension was being paid regularly to the applicant. As regards the matter for appointment on compassionate ground, the applicant's husband retired from service on 28.02.2109 and passed away on 26.07.2019 subsequent to his retirement. Since the request of applicant was not in line with aforesaid Rule 2 of the CCS (Medical Examination) Rules 1957 (or the corresponding provision in the CCS Regulations), in line with Rule 38 of the CCS (Pension) Rules, 1972 or in line with Scheme for Compassionate appointment, there is no case for giving compassionate appointment to the applicant's son. Moreover the applicant's son did not suffer from any form of disability.
5. It is further submitted that the applicant before approaching this Tribunal, approached the Court of Chief Commissioner for Persons with Disabilities and the said Court vide order dated 24.08.2020 disposed of the matter by holding that the contentions of the respondents herein were found to be satisfied. The review filed against order dated 24.08.2020 was also dismissed vide order 9 OA No.1663/2021 dated 30.06.2021. Hence, this OA is also barred by the doctrine of res judicata.
6. Analysis:
6.1 In the present case, it is not disputed that the total length of service of applicant's husband was 39 years since 1980 and as a regular employee his length of service was 20 years 10 months and 27 days.
6.2 It is also not disputed that as per the Disability Certificate dated 18.01.2019, applicant was 100% disabled. On the date of application for grant of compassionate appointment, the applicant has retired from service on 28.02.2019. The applicant is seeking compassionate appointment of her son on the premise that the applicant's husband had acquired the disability during his service, and therefore, entitled to protection under Section 47 of the Disability Act, 2016. In the light of aforesaid provision, the applicant's son is entitled to get compassionate appointment under Section 20 read with Section 47 of Disability Act, 10 OA No.1663/2021 2016. The provisions of Disability Act, 2016 and aims thereto are prepared with a view to safeguard the rights and interests of disabled persons, which is clear from the aims and objects of the Disability Act, 2016 itself, which reads as under:
"OBJECT The object of the Scheme is to grant appointment on compassionate grounds to dependent family member of a Government servant dying in harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood, to relieve the family of the Government servant concerned from financial destitution and to help it get over the emergency.
TO WHOM APPILCABLE To a dependent family member-
(A) of a Government servant who-dies while in service (including death by suicide); or
(b) is retired on medical grounds under Rule 2 of the CCS (Medical Examination) Rules 1957 or the corresponding provision in the Central Civil Services Regulations before attaining the age of 55 years (57 years for erstwhile Group 'D' Government servants); or
(c) is retired on medical grounds under Rule 38 of the CCS (Pension) Rules, 1972 or the corresponding provision in the Central Civil Service Regulations before attaining the age of 55 years 57 years for erstwhile Group 'D' Government servants); or...."
6.3 Bare perusal and plain reading of the above provisions itself make it abundantly clear that in 11 OA No.1663/2021 facts of the case, the said provisions are not at all applicable. The applicant has not retired on medical grounds in present case. The applicant has misread and misconstrued the purpose behind the said Rule position. Merely, because the applicant was medically ill, is no ground for extending the benefit of disability. Once the applicant, even though was disabled, had retired on 28.02.2019, it is unconceivable to think how the benefit of Disability Act can be extended to the applicant in the light of provisions of the Disability Act 2016 as well as Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
6.4 It is also highlighted that merely because one or the other benefit is extended to a disabled person after completion of his complete period of service/tenure under the Service Regulations, such right to compassionate appointment to their son cannot be said to be inheritable and shall automatically come into play to call upon the respondents to consider the case of the applicant 12 OA No.1663/2021 for grant of compassionate appointment. It is well settled law that the compassionate appointment cannot be claimed as a matter of right. In the present case, when the applicant has fully enjoyed all benefits accorded to him in accordance with law during his tenure, now, at the fag end of the career, he or any of his dependent(s) cannot seek benefit of his disability. The applicant has taken a tarnishing plea that her husband acquired disability during service, she or her son is entitled to corresponding right of employment. Such an extension would run contrary to letter and spirit as well as the policy of grant of compassionate appointment. 6.5 In the recent decision, this Court in the case of Director of Treasuries in Karnataka and Anr. Vs. V. Somyashree, 2021 SCC Online SC 704, had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of the Hon'ble Apex Court in N.C. Santhosh Vs. State of Karnataka, (2020) 7 SCC 617, this Court has summarised the 13 OA No.1663/2021 principle governing the grant of appointment on compassionate ground as under:-
(i) that the compassionate appointment is an exception to the general rule;
(ii) that no aspirant has a right to compassionate appointment;
(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;
(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy;
(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment. 6. As per the law laid down by this Court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to 14 OA No.1663/2021 all aspirants as mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right.
6.6 In the case of State of Himachal Pradesh and Anr. Vs. Shashi Kumar, (2019) 3 SCC 653, this Court had an occasion to consider the object and purpose of appointment on compassionate ground and considered the decision of this Court in the case of Govind Prakash Verma Vs. LIC, reported in (2005) 10 SCC 289, (REF: Civil Appeal No. 6938 OF 2022 The State of Maharashtra and Anr. Versus Ms. Madhuri Maruti Vidhate (Since after marriage Smt. Madhuri Santosh Koli) 30.09.2022) in paras 21 and 26, it is observed as under:-
"21. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289, has been considered subsequently in several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been considered 15 OA No.1663/2021 by this Court in Umesh Kumar Nagpal v. State 5 of Haryana [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138]. The principles which have been laid down in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138] have been subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract:
"2. ... As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. 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 6 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 nonmanual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution 16 OA No.1663/2021 and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."
26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [(2008) 11 SCC 384] has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case."
7. Conclusion:
7.1 In view of the above, the application for grant of relief sought in Clause 8 (i) is devoid of merit.
Hence, the OA is dismissed qua the said relief. 17 OA No.1663/2021 7.2 In so far as the dues in terms of Clause 8 (ii) is concerned, the respondents authorities are directed to grant the applicant salary of her husband from September, 2018 to February, 2019, pension from March 2019 to December 2019, leave encashment of 2 months, death gratuity, benefits from CGEGIS, CGHS facility, if not released, in accordance with the provisions, within a period of two months from the date of receipt of certified copy of this order. OA is partly allowed to the aforesaid extent only. There shall be no order as to costs.
(Manish Garg) Member (J) /sd/