Central Administrative Tribunal - Chandigarh
Unknown vs Chandigarh Administration Through ... on 22 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH O.A. No.1172/CH/12 (Reserved on 7.8.2013) Chandigarh, this the 22nd day of August, 2013 Vikas Kumar son of Late Sh. Suresh Kumar, resident of House No. 516, New Police Line, Sector 26, Chandigarh. APPLICANT BY ADVOCATE: SHRI R.S. DADWAL VERSUS 1.Chandigarh Administration through Home Secretary, UT. Chandigarh. 2.The Inspector General of Police, U.T. Chandigarh. 3.The Senior Superintendent of Police, UT. Chandigarh. RESPONDENTS BY ADVOCATE: SHRI ARVIND MOUDGIL ORDER
HONBLE MR. SANJEEV KAUSHIK, MEMBER(J):-
1. The applicant is aggrieved against the order dated 17.1.2012 by which his claim for appointment under the compassionate scheme has been rejected.
2. The few facts which are relevant for deciding the present controversy are that the father of the applicant Late Sh. Suresh Kumar was a Constable with the Chandigarh Police who died in harness on 22.9.2010, leaving behind two sons and the widow. At the time of death of his father, the elder brother of the applicant was already in service and living separately with his family.
3. On 3.11.2010, the applicant applied for appointment on compassionate grounds. It is the case of the applicant that his mother is fully dependent on him as his elder brother does not support the family and residing separately.
4. The case of the applicant was firstly considered by the Common Committee on Compassionate Appointments of the respondent department in its meeting held on 28.4.2011. The Committee observed that before taking a final decision on the representation of the applicant for appointment, let the status regarding Arun Kumar, elder brother of the applicant be checked as to whether he had been residing with the family or otherwise by documentary evidence. A detailed inquiry was conducted by the Deputy Superintendent of Police, CID, UT Chandigarh, who submitted his report on 11.8.2011 stating therein that he is residing separately. He also submitted in his report that the applicant is presently serving as Home Guard Volunteer in Chandigarh and looking after his mother and his family. The case of the applicant thereafter was considered by the Committee in its meeting held on 17.1.2012 and the same was rejected by the impugned order. Hence the present OA.
5. Pursuant to notice, the respondents contested the claim of the applicant. The respondents did not controvert the fact that after the death of the deceased employee, the applicant is looking after his mother and his elder brother who is in BSF is residing separately and looking after his family and not helping his mother as well as his brother. The respondents have relied upon clause 10(a) of the Scheme for Compassionate Appointment 1998 issued by the Nodal Agency DoPT and rejected the claim of the applicant on the ground that there is already an earning member in the family.
6. The applicant has filed the rejoinder affidavit. Apart from contradicting the averment made in the Written Statement, the applicant has alleged discrimination in granting the appointment to the similarly situated persons like the applicant and rejecting his claim by relying upon clause 10(a) of 1998 Scheme.
7. I have heard Sh. R.S. Dadwal, learned counsel for the applicant and Sh. Arvind Moudgil, learned counsel appearing on behalf of respondents.
8. Sh. Dadwal, learned counsel for the applicant vehemently argued that the action of the respondents in rejecting the claim of the applicant by relying upon clause 10(a) of 1998 scheme is totally misplaced and shows non-application of mind because in the case of the applicant, once an inquiry has already been conducted by the Deputy Superintendent of Police who had opined that the elder son of the deceased employee is not supporting his mother, then the respondents cannot reject his case for appointment on compassionate grounds by relying upon the above provision. He further submitted that while rejecting the case of the applicant by the impugned order, the respondents are influenced by the fact that his elder brother is already in service without looking into the fact that the applicant and his mother are not having any financial help from him and they are also not having sufficient means to live their life. He placed reliance upon the judgment in Gobind Parkash Verma Vs. LIC of India, (2005)10 SCC 289.
9. Per contra, Mr. Moudgil appearing on behalf of the respondents supported the impugned order and argued that the Committee constituted for this purpose, after examining the case of the applicant, found that his case is not deserving. He submitted that the Compassionate Appointment cannot be claimed as a matter of right. He placed reliance upon the Judgment Umesh Nagpal Vs. State of Haryana, (1994 SCC (4) 138).
10. I have considered the rival submission and have gone through the pleadings.
11. The concept of Compassionate Appointment has already been considered by the Honble Supreme Court in various judgments where an emphasis has been given that Compassionate Appointment cannot be made a another mode for appointment. The very object of making provision for appointment on compassionate ground is to provide succor to a family dependent on a government employee, who has unfortunately died in harness. On such death, the family suddenly finds itself in dire straits, on account of the absence of its sole bread winner. The appointment is to be given as per the policy only. In the case of Umesh Kumar Nagpal v. State of Haryana (1994 (3) S.C.T. 174 (S.C.) the Hon'ble Apex Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court has observed as under :
"It appears that there has been a good deal of obfuscation on the issue. As a rule, appointment 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 interest 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 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 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.... Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased....... The decision does not justify compassionate employment either as a matter of course....... The only ground which can justify compassionate employment is the penurious condition of the deceased's family ...... The consideration for such employment is not a vested right.......... The object being to enable the family to get over the financial crisis.
12. In the case of Haryana State Electricity Board and Anr. Vs Hakim Singh (JT 1997 (8) SC 332), the Hon'ble Apex Court placed reliance upon the Judgments referred to above and observed that the object of providing for compassionate employment is only to relieve the family from financial hardship, therefore, an 'ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment'.
13. Similarly, in the case of Haryana State Electricity Board Vs Naresh Tanwar and Anr., (1996) 8 SCC 23), the Hon'ble Apex Court reiterated and followed the law laid down in Umesh Nagpal's case (supra) and directed the applicants therein to apply for employment on compassionate ground "by giving full details of the family circumstances and the economic conditions."
14. In the case of Director of Education (Secondary) and Another Vs Pushpender kumar and Ors., 1998 (3) AWC 1772 (SC) : (1998) 5 SCC 192, the Apex Court has observed as under ;
"The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both the ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provision, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds for the dependant of a deceased employee,"
15. In the light of the above judicial pronouncements, now I proceed to examine the case in hand. The applicant herein is also serving as a Home Guard Volunteer with the Chandigarh Administration. His elder brother is neither residing with the family nor supporting the family financially. This fact has already been proved in the report submitted by the Dy. Superintendent of Police, UT Chandigarh in its report dated 11.8.2011 where he mentioned that the mother of the applicant is residing with the applicant only and not getting any financial help from the elder son who resides in Gurgaon and working with BSF and the salary of the applicant cannot fulfill his family requirements. Despite the inquiry conducted pursuant to the recommendation of the Committee dated 28.4.2011, the Departmental Common Committee rejected the claim of the applicant by the impugned order. A perusal of the same makes it clear that while rejecting his case, they are influenced with the fact that his elder brother is in service and taking into account this fact only the claim of the applicant for Compassionate Appointment has been rejected.
16. I have also perused para 10(a) of the 1998 Scheme, but it does not suggest that the case for seeking Compassionate Appointment can be closed down only on the ground that one son of the deceased employee is already in service. Rather, clause 10(b) of the Scheme casts a responsibility on the Committee to find out the economic condition of a family which in case of the applicant has not been assessed by the respondents before rejecting the claim of the applicant. The relevant para by which the case of the applicant was rejected, reads as under:-
The Committee after considering all the facts is of the view that one of the son of the deceased official is already employed in government service and he is expected to look after the family. The family has sufficient funds and property also. As such, request for providing job to deceaseds son (Vikas) has been considered by the DCC in light of the provisions contained in Clause 10(a) of the Scheme for compassionate appointment under the Central Government and the Committee does not consider the case fit for giving compassionate appointment to any of the family member.
17. A perusal of the above makes it clear that the respondents while rejecting the case of the applicant influenced with the fact that the elder son of the applicant is always in service and he is expected to look after his family whereas the respondents had already conducted an enquiry by the Deputy Superintendent of Police who has given in black and white that the elder son is not supporting the family of the deceased employee. By writing that the family has sufficient fund and property, cannot be made a ground to reject the claim of the applicant. Once the respondents have themselves conducted an enquiry then, they have to give weightage to the enquiry report, which in the present case, has not been taken into account. Therefore, the impugned order cannot sustain.
18. In the light of the foregoing discussion, I am of the view that the case of the applicant has not been considered in the right perspective in terms of para 10 (b) of 1998 Scheme. Therefore, the impugned order is hereby quashed and set aside. The matter is remitted back to the respondents to reconsider the case of the applicant in the light of para 10 (b) of 1998 Scheme and pass a speaking and reasoned order within a period of three months from the date of receipt of a copy of this order.
18. Disposed of accordingly. No costs.
(SANJEEV KAUSHIK) MEMBER(J) Dated: August 22, 2013, KKS