Central Administrative Tribunal - Ernakulam
Shambughosh C M vs The Chief General Manager Telecom ... on 1 December, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/00224/2018
Thursday, this the 1st day of December, 2022.
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
Shambughosh C.M., S/o.C.Balaraman (Late)
Chittarikkal Meethal House, Kayalam PO.
Mavoor, Calicut. - Applicants
[By Advocate: Mr. Sunil Jacob Jose]
Versus
1. The Chief General Manager Telecom
Bharat Sanchar Nigam Ltd.,
Thiruvananthapuram-695033.
2. Chairman & Managing Director
Bharat Sanchar Nigam Ltd.,
New Delhi-110001. - Respondents
[By Advocate : Mr. V.Santharam]
The application having been heard on 09.11.2022, the Tribunal on
01.12.2022 delivered the following:
ORDER
The applicant is aggrieved by Annexure-A1 order passed by the 1st respondent rejecting his application for compassionate appointment. His father Sri.Balaraman and died on 13.06.2005 while working as Telephone Mechanic under GMTD, Malappuram. Late Balaraman is survived by his wife and three children, two boys and a girl. The applicant is the elder son. Earlier, an application for compassionate ground appointment was given by him on 13.07.2006. When that was rejected under Annexure-A1, he approached this Tribunal with O.A.894/2015 which was disposed of by Annexure-A3 order. The penultimate paragraph of Annexure-A3 reads thus:
"9. In the result, the OA is allowed to the extent of directing the O.A No. 224/2018 2 respondents to reconsider the request dated 13.7.2006 of the applicant in accordance with Annexure RI(a) scheme which was in vogue at the time of death of the applicant's father. Ordered accordingly. Respondents shall take a fresh decision in a specially convened meeting of the circle high power committee for deciding the case of the applicant in accordance with Annexure RI(a) scheme vide the OM dated 10.9.1998 of the DoP&T, Government of India, in an objective manner, keeping in view of the discussion in this order. This exercise shall be completed within two months from the date of receipt of a copy of this order. It is made clear that the consideration by the circle high power committee shall not be delayed waiting for the next meeting of the circle high power committee as per the schedule followed by the respondents, but it shall be done within the time specified in this order. The decision so taken by the circle higher power committee shall be communicated to the applicant soon thereafter."
Accordingly, the application was considered again and by an extra air for order once again it was rejected.
2. According to the applicant, the father had constructed a residential building in their property by availing a loan from the Co-operative Bank and Post and Telegraph Co-operative Society. But the construction could not be completed due to financial difficulties. He had other financial liabilities in connection with the marriage of his daughter. The applicant and other members of his family are facing attachment notices and summons from various authorities. They have only 5 cents of land and the pension received is meagre. The sole source of income of the family was the salary of the father and after his death they are living in an indigent condition. The assessments made by the respondents to grant him appointment on compassionate ground were not based on sound principles. Annexure-A4 indicates that the application was considered on the basis of the order dated 27.06.2007, which is not applicable with respect to the application O.A No. 224/2018 3 filed on 13.07.2006. This Tribunal also found that the eligibility was not correctly assessed. But Annexure-A1 has been passed contrary to the directions given by the Tribunal. The evaluation made by the respondents is not on the basis of correct factual situation. The respondents did not consider the fact that the sudden death of the applicant's father has caused untold financial hardships to the family. The attempt of the respondents is to defeat the object of the scheme for granting compassionate appointment. Annexure A1 was passed basing on a fresh report of the Welfare Officer, which was unnecessary. Benefits should have been given to the applicant on the situation prevailed in 2005. The terminal benefits and family pension granted to the dependents of the diseased should not have been taken into consideration. The directions of this Tribunal has not been considered by the respondents. The fact situation on the date of death of the employee was not considered. The father had left leaving a semi constructed house; in order to complete the construction the family had to avail loan from various sources. These aspects had not been considered. His application was rejected on frivolous grounds. Therefore, the application is to direct the respondents to grant appropriate appointment to the applicant under the compassionate appointment scheme.
3. On behalf of the respondents the Assistant General Manager filed detailed reply. According to her, the application is not maintainable and is hopelessly barred by limitation. On the instructions of the Government and in the light of various judgments of Courts, the Department of Administrative Reforms and Public Grievance had formulated a scheme, Annexure-A1, for compassionate appointment under the Central Government. Basing on the said scheme, for bringing uniformity in assessing the indigent condition of the family for offering O.A No. 224/2018 4 compassionate ground appointment BSNL framed Annexure-R1(b) guidelines with effect from 21.06.2007. Simultaneously, with the issuance of the guidelines the authority to grant compassionate ground appointment is conferred on the BSNL Corporate Office. In line with these directions, the Circle Offices have power only to collect the applications and other materials, assess the eligibility basing on weightage point system and forward the same to the Corporate Office. As per the extant guidelines, cases with 55 or more net points alone are treated eligible for consideration by the Corporate Office and applicants obtaining 54 points and less cannot aspire to get appointment. Late Balaraman is survived by his wife, two sons and a daughter. All his terminal benefits amounting to Rs.1,84,023/- were paid to the family and monthly pension of Rs.2,810/- with DA is being paid to the wife. In Annexure-R1(d) application for compassionate appointment no mention has been made about any liability. Moreover, Annexure-R1(f) certificate obtained from the State Bank of India RACPC, Kozhikode indicates that Mrs.Sarojini, mother of the applicant, had availed a housing loan of Rs.2,59,000/- on 04.07.2008, after three years of the demise of his father and the amount outstanding is Rs.1,77,324.58. That means, the fact that the mother of the applicant had obtained a loan from the State Bank of India is indicative that the family had necessary means to repay the loan. On assessing the eligibility of the applicant based on Annexure-R1(b) guidelines the applicant obtained only 52 weightage points which falls short of the required 55 points, thus the committee decided to reject the application. O.A.897/2015 was filed after seven years of rejecting his case. Still the claim was again considered in the light of the order of this Tribunal. The Welfare Officer was specially deputed to the applicant's house who collected necessary details. Annexure R1(g) report filed by O.A No. 224/2018 5 the Welfare Officer shows that the financial status and living style of the family is average. The said report was considered by the Circle High Power Committee on 21.11.2017 in a special meeting. The financial condition of the applicant was not that bad, requiring employment assistance. Such a claim can be extended only to dependents of employees dying in harness, leaving his family in penury and without any means of livelihood; the object of granting compassionate appointment is to enable the family to tide over that sudden crisis. Compassionate appointment cannot be granted as a matter of right. On these considerations, the application is sought to be dismissed.
4. Counsel on both sides were heard elaborately. Learned counsel for the applicant submits that from Annexure-A3 order of this Tribunal it is clear that the respondents should have considered the financial condition of the applicant on the date of death of the father and therefore the scheme in force as on 13.06.2005 should have been followed. Instead, a report has been called for from the Welfare Officer after Annexure-A3 order, which is not in conformity with the directions given by the Tribunal. In fact Annexure-A4 is purely on the basis of the fresh report of the Welfare Officer, instead the respondents ought to have considered the condition of the family as on the date of death. To support the contention, the learned counsel relied on the decisions reported in State of Madhya Pradesh and others v. Ashish Awasthi and another [2022(2) SCC 157] and Malaya Nanda Sethy v. State of Orissa and others [2022 KHC 6620]. According to the learned counsel, the respondents should not have taken into consideration the subsequent developments. They have no case that the applicant is not eligible under the scheme in force on the date of death of his father.
O.A No. 224/2018 6
5. On the other hand, according to the learned Standing Counsel, he has no dispute that the scheme as on the date of death should have been considered. But the basic question is whether the family was in such a bad financial condition, which could be tide over only by appointing the applicant to a public post. According to the learned Standing Counsel, there are sufficient indications to infer the condition of the applicant and the family on the date of death. Referring to Annexure-R1(d) application for compassionate appointment he pointed out that despite the claim of the applicant in the O.A. that his father had died after incurring numerous liabilities, application does not contain any such details. The relevant columns has been kept blank. Referring to the very same document, he pointed out that the mother of the applicant was getting a basic family pension of Rs.2,810/- which has been considerably enhanced during the 7 th Pay Commission Report. According to the learned counsel, even though the application for compassionate appointment was declined by Annexure-A1 order dated 10.03.2008, that was challenged by filing an Original Application before the Tribunal, Annexure A3, only in 2015 after about seven years. Even though the delay in filing the O.A. might have been condoned, that fact does not obliterate the delay. According to him, Annexure-R1(e) also suggests that the father of the applicant had not availed any house building advance from the department. Referring to Annexure-R1(f) he said that mother of the applicant had availed Rs.2,59,000/- on 04.07.2008, after three years of the death of the father. The bank would not sanction any loan unless the loanee has no capacity to repay the same. Moreover, the learned counsel also indicated that the family could sustain the crisis after the death of the father. There is also no case that for granting a loan, O.A No. 224/2018 7 property of some others had to be burdened. This factum also indicates that this family had a continuous financial growth. Detailing the nature and scope of compassionate appointment which is an exception to the general rule of recruitment in public services he said that, now after the lapse of 17 years, the applicant is not entitled to get any relief. He also relied on the decisions in Government of India and Anr. v. P.Venkatesh [(2019) 15 SCC 613], Punjab State Power Corporation Limited and others v. Nirval Singh [(2019) 6 SCC 774], Sunil Kumar K.G. v. Union of India and others [2003(2) ILR Kerala Series 46] and the decision of the Hon'ble Supreme Court in MGB Gramin Bank v. Chakrawarti Singh [AIR 2013 SC 3365] .
6. He also submitted that the applicant did not file any rejoinder to the detailed reply.
7. It is the common case that Balaraman, the father of the applicant, had died on 13.06.2005 while working as Telephone Mechanic under the respondents. He is survived by his wife and three children, two boys and a girl. The daughter was married away during the lifetime of Balaraman. The applicant moved Annexure- R1(d), the application for compassionate appointment on 13.07.2006, but by Annexure-A1 that was rejected on the premise that under the scheme dated 27.06.2007 he has not obtained prima facie eligibility for granting compassionate appointment by scoring minimum weightage point of 55. That was challenged before this Tribunal through O.A.897/2015 contending that the respondents ought to have considered the scheme in vogue on the date of death. That argument was sustained and Annexure-A3 order was passed as stated earlier. O.A No. 224/2018 8
8. On the lines of the directions in Annexure-A3, the matter was considered afresh. The respondents obtained a report from the Welfare Officer, Annexure- R1(g), reporting that the financial status of the family is average. The said report is dated 20.10.2017. On that basis, the application was considered again and under Annexure-A4 dated 06.12.2017, the application was again rejected. Aggrieved by the same, the applicant has moved this Tribunal.
9. As rightly pointed out by the learned Standing Counsel, the compassionate ground appointment cannot be sought as a matter of right. It is a welfare measure granted to the dependents of an employee, dying in harness, to tide over the financial crisis created due to the untime demise of the breadwinner of the family. It is an exception to the general Rules of recruitment. Normally, recruitment is done by open invitation to the posts, following recruitment process based on rules of reservation, etc. Here, in order to help the family of the deceased, which is in utter penury, and to give immediate succor, employment is granted to an eligible member of the family. It is done on compassionate ground after objective assessment of the financial condition of the family, after taking into account the assets and liabilities and other relevant aspects. In Umesh Kumar Nagpal vs State Of Haryana [(1994) 4 SCC 138], the Hon'ble Supreme Court has held 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 the member of such family a post much less a post for post held by the deceased. ........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. ...........The only ground which can justify compassionate appointment is the penurious O.A No. 224/2018 9 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......"
It is also important that immediacy is the hallmark of appointment under the compassionate ground scheme. In Union of India v. P.Venkatesh, quoted supra, the Supreme Court has held that 'the essence of the claim lies in the immediacy of the need'. In the facts of that case the Supreme Court observed that even the first recourse to the Central Administrative Tribunal was in 2007, nearly 11 years after the death of the employee. Thus, it was observed that recourse to the Tribunal suffered from a delay of over a decade in the first instance, this staleness of the claim took away the basis of providing compassionate appointment. According to the Supreme Court, in such a case the claim is liable to be rejected on that ground alone. It seems that the above observations are apposite to the facts of this case. At the same time, it is not forgotten that the Annexure-A3 was passed after condoning the delay.
10. The questions as to which is the scheme to be followed in the matter of compassionate appointment, whether the scheme as on the date of death of the employee or the date of filing the application for compassionate appointment, were always remain in a grey area. As pointed out by the learned counsel for the applicant, the decisions relied on by him supports his contention. At the same time, I have come across a Full Bench decision of the Hon'ble Supreme Court in Santhosh N.C. v. State of Karnataka and others [AIR 2020 SC 1401] which was decided on 04.03.2020, where it is held that the scheme prevailing on the date of consideration of the application should be the basis for consideration of the claim for compassionate appointment. The decisions relied on by the learned counsel for O.A No. 224/2018 10 the applicant are Division Bench decisions rendered on 18.11.2021 and in 2022 but these decisions have not considered the earlier Full Bench decision. That means, there are inconsistent decisions on this aspect.
11. Whatever it may be, the said direction of this Tribunal in Annexure-A3 order was to consider the claim of the applicant based on the scheme in vogue on the date of death. In fact, both sides could not bring to the notice of the Tribunal the scheme prevailing on 13.06.2005 or on 13.07.2006. Annexure-R1(a) indicates that the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training had issued an Office Memorandum on 09.10.1998 laying down the scheme with broad outline. It was on these lines that BSNL had promulgated guidelines, Annexure-R1(b), on 27.06.2007. Both sides could not enlighten the Court that prior to Annexure-R1(b) some policy guidelines was in force with regard to the appointment under the compassionate appointment in vogue in the BSNL or its predecessor, the Department of Posts and Telegraphs.
12. Now the question is whether the respondents had considered the penurious financial condition of the applicant on the date of death. Even though there is no direct evidence on this aspect, as rightly pointed out by the learned Standing Counsel for the respondents, there are indications to suggest that the condition of the applicant was not that bad necessitating assistance through compassionate appointment scheme. Firstly, even though it was stated that the deceased had incurred numerous liabilities for the construction of the house, for marrying away the daughter etc., Annexure-R1(d) is conspicuously silent about any such liability. Moreover, documents produced by the respondents indicate that the deceased had O.A No. 224/2018 11 not availed any house building advance from the department. Documents are also wanting to say that he had incurred liabilities from the Co-operative bank and from the Post and Telegraph Co-operative Society. Whatever it may be, in the light of the view proposed to be taken, it seems that the Tribunal need not go into such aspects of the matter. The important consideration is whether the financial condition of the family was that bad, for tiding over the same, compassionate appointment was imperative. As rightly pointed out by the learned counsel, this can be considered by looking as to whether the family could sustain such a crisis. There is no doubt that the materials made available by the respondents are sufficient to say that the condition of the family was not that bad. In Sunil Kumar K.G., quoted supra, the Hon'ble High Court has observed thus:
" However, the basic guiding factor is the condition of the family. It can happen that despite the death of the breadwinner, the family may be in good position to sustain itself. In another case, even after the collection of terminal benefits, the family may be under a debt. Thus, the mere fact that a family has received terminal benefits, cannot, by itself, be a reason to deny appointment on compassionate basis. Equally, even in a case where the family has not got sufficient amount by way of retiral benefits, the prayer for the grant of appointment on compassionate basis can be rejected if it is found that the family is in a position to sustain itself."
Here, from Annexure-R1(d) it is clear that they were granted terminal benefits of Rs.1,82,367/- besides the mother is getting a monthly family pension of Rs.2,810/-. This amount must have been periodically hiked after the subsequent Pay Commission Reports. Moreover, on their own showing, they are having a place of abode. That means, as held by the Hon'ble Supreme Court in Nirval Singh, quoted supra, the very objective of providing immediate amelioration to the family is extinguished. Even though they might have suffered a crisis at the time of death of the head of the family, subsequent developments clearly indicate O.A No. 224/2018 12 that they could sustain the crisis.
13. Annexure-R1(f) cannot be lost sight of. The house building advance of Rs.2,59,000/- was availed by the mother of the applicant on 04.07.2008. so far nearly Rs.81,000/- has been repaid and the outstanding balance as on 10.10.2007 was Rs.1,77,324.58. From the documents numerous inferences are possible. Firstly, as rightly pointed out by the learned counsel, such an amount could be availed only on furnishing solid security; the loan was sanctioned necessarily after convincing the capacity to repay the same. Secondly, it is to be noted that the loan was availed after three years of the death of the head of the family. That would indicate the financial stability of the family. Moreover, as noted earlier, a good amount has been repaid also. In other words, even if we eschew Annexure-R1(b) scheme and Annexure-R1(g) report, there are indications to say that the financial condition of the family was not that bad requiring assistance through compassionate appointment. Again, after long lapse of time, that is after 17 years of the death of the employee, there is no justification in seeking employment under the scheme. I find that the application is liable to be dismissed.
Dismissed. No costs.
Dated, this the 1st day of December, 2022.
JUSTICE K.HARIPAL JUDICIAL MEMBER ds O.A No. 224/2018 13 Applicant's Annexures Annexure A4: Photocopy of Order No.ES/9-215/2006/27 dated 6/12/17 of the 1st respondent.
Annexure A1: True copy of Order dated 23/2-10/3/08 passed by the 1st respondent. Annexure A2: True copy of the representation dated 26/4/08 submitted by the mother of the applicant.
Annexure A3: Photocopy of the order dated 19/6/17 of this Hon'ble Tribunal in OA.No.897/15.
Annexure A5: Photocopy of the letter dated 4/10/10 of the 1st respondent submitted to the Additional Secretary, CMPGRC, Secretariat, Thiruvananthapuram.
Respondents' Annexures Annexure - R1(a):- True copy of the instructions issued by the Ministry of Personnel, Public Grievances & Pension, Department of Personnel and Training,Government of India under letter No.14014/6/94-Estt (D)-dated 9th October 1998. Annexure-R1(b):- True copy of letter No. 273-18/2005- Pers. IV dated 27-6-2007. Annexure-R1(c):- True copy of the letter No. 268-79/2002- Pers. IV dated 27.12.2006. Annexure-R1(d):- True copy of the application form originally submitted by the applicant. Annexure -R1(e):- True copy of the certificate No.EEP/4754011/2017-2018/22 dated 12.10.2017.
Annexure-R1(f):- True copy of the statement dated 10.10.2017 issued by the Assistant General Manager, State Bank of India, RACPC,Kozhikode.
Annexure-R1(g):- True copy of the report of the Welfare Officer dated 20.10.2017.
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