Central Administrative Tribunal - Mumbai
Shailesh Mukhchand Khobragade vs M/O Communications on 24 April, 2024
1 OA No.2034/2013 CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, CAMP AT NAGPUR ORIGINAL APPLICATION No.2034 OF 2013 (with MA No.2158/2018) Dated this Wednesday, the 24th day of April, 2024 CORAM : SHRI RAJINDER KASHYAP, MEMBER (ADMINISTRATIVE) Shailesh S/o Mukhchand Khobragade, Aged about 32 years, Occupation - Nil, R/o C/o Gandhi Ward, Nangi Chowk, Tumsar, Dist - Bhandara. - Applicant (By Advocate Shr D.M.Surjuse) : VERSUS 1. -- The Union of India, Ministry of Post and Telecommunication 'Department, New Delhi, Through its Secretary. 2. Asst. Director, Postal Services (Recruitment), Maharashtra Circle, Mumbai 400 001. 3, Sr. Superintendent of Post Offices, Nagpur Mofussil Division, Nagpur -- 02 4. . The Post Master General, Nagpur Region, Nagpur-01. - Respondents (By Advocate Shri Bhaskar D. Pandit) Reserved on 19.03.2024 Pronounced on 24.04.2024 Page 1 of 48 2 OA No.2034/2013 ORDER
Heard the learned counsels for the applicant and the respondents.
2. This OA is filed under Section 19 of the Administrative Tribunals Act, 1985. The following reliefs is sought by the applicant in the present OA:
"8.A. Allow the instant application with heavy compensatory cost and quash and set aside order dated 04.03.2010 issued by the respondent No.3.
8.8. Direct the respondent No.2 and 3, to forthwith provide employment/appointment to the applicant on compassionate grounds, w.e.f. The year 2007, in place of his deceased father.
8.C. By way of interim relief, direct the respondenis, to appoint the applicant on compassionate grounds, against the available vacant post, during the pendency of the instant application.
8.D. Te pass any other appropriate order as this Hon'ble Court deems fit and proper in the premises and in the interest of justice."
3. The father of the applicant Late Shri Mukhchand Khobragade was appointed as Postal Assistant in the Department of Post. The father of the applicant (ie. the deceased employee) passed away on 23.12.2006. The application for appointment on compassionate ground was made by the applicant on 20.01.2007. The respondent No.3 vide order dated 04.03.2010 informed the applicant that the Circle Relaxation Committee Page 2 of 48 3 OA No.2034/2013 (CRC), office of Chief Postmaster General, Maharashtra Circle, Mumbai 400 001 in its meeting held on 06.07.2009 to 10.07.2009 the considered and examined the case of the applicant for appointment on compassionate ground along with other similar applications. It was informed that the Committee has not recommended the case of the applicant for appointment on compassionate basis. The grounds for not recommending the case by the Committee was also conveyed to the applicant.
4, Vide order dated 11.08.2017, in the present OA, it was observed that the respondents have already filed reply to the OA and its copy is served on the learned counsel for the applicant. However, they have not filed their rejoinder. Continuous absence of the applicant/his Advocate before the Registrar Court on various dates was observed. This Hon'ble Tribunal was of the considered view that the applicant has lost his interest to proceed with the matter. In view of this position, the OA was dismissed in default due to non-appearance of the applicant and his Advocate.
Page 3 of 48 4 OA No.2034/20135. Aggrieved by the impugned order, the present OA was filed by the applicant. In the present OA, MA No.2158/2018 and MA No.2157/2018 were filed by the applicant. MA No.2158/2018 relates to condonation of delay, whereas, MA No.2158/2018 relates to restoration of OA. This Hon'ble Tribunal in its order dated 20.05.2019 examined both the MAs and it was decided on the above date and dismissed both the MAs.
6. Aggrieved by the decision dated 20.05.2019 of this Hon'ble Tribunal, the applicant has challenged the order in the Hon'ble High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition 'No.1633/2020. The Hon'ble High Court in its order/judgment dated 07.02.2023 allowed the restoration of the Original Application No.2034/2013 and further directed that the application for restoration be considered by the learned Central Administrative Tribunal on its merits. In view of the order of Hon'ble High Court of Judicature of Bombay, Nagpur Bench, Nagpur, the OA No.2034/2013 was restored by | condoning the delay.
7. The matter was heard on 18.03.2024. The learned counsels for the applicant and the respondents stated that the pleadings are Page 4 of 48 5 OA No.2034/2013 complete in this matter. Therefore, the matter should be heard finally. The matter was heard on 19.03.2024.
8. At the outset, learned counsel for the respondents mentioned that a MA No.2027/2013 in the present OA was filed which has not been ' deliberated upon so far. It is seen that MA No.2027/2013 was filed on 05.03.2013 for seeking condonation of delay in filing of the present Original Application. In view of the judgment of the Hon'ble High Court of Judicature at Bombay, Nagpur Bench, Nagpur, the issue of condonation of delay has been looked into and the delay has been condoned while restoring the OA which was earlier dismissed in default. it could be said that the issue of delay has already been addressed in the above judgment of the Hon'ble High Court, hence, this aspect may be treated as closed.
9. The argument of the learned. counsel for the applicant is that the respondent No.3 vide his communication dated 04.03.2010 rejected the claim of the applicant for grant of appointment on compassionate ground, on the reasons that the applicant's family is getting substantial and sufficient benefits and family pension. He further states that the | Page 5 of 48 6 OA No.2034/2013 applicant had preferred a representation to the respondents on 08.03.2010 interalia pointing out that the applicant and his family living in indigent condition, their economical conditions are bad and it is difficult for them to run their livelihood along with three other family members in the meager amount of pension. He further contended that inspite of lapse of considerable delay, no action or decision has been taken by the respondents on the representation of the applicant till this date. He also submitted that there were several vacancies in the Department of the respondents and the subsequent claims were also considered during the period and the claims of rnany candidates whose economical condition was better as compared to the applicant.
46. The respondents in their reply dated 28.06.2014 stated that the Circle Relaxation Committee (CRC) meeting at circle level was held on 06.07.2009 to 10.07.2009, The case of the applicant was considered and rejected on the ground that the family is found not to be indigent condition as other severe cases were in the list of consideration. The reasons for rejection were communicated to the applicant on 04.03.2010. The respondents have denied that it is not the reason that Page 6 of 48 7 OA No.2034/2013 despite of having sufficient vacancies, the applicant has not given | appointment. On the contrary, the case of the applicant was examined by the CRC as per the rules and orders on the subject. The family of the | applicant was not found relatively indigent condition. The reasons for rejection were conveyed to the applicant. The delay-in holding the CRC meeting could not be attributed as the reason for rejection of the case of the applicant. The family of the applicant received terminal benefits of Rs.7,16,317/- and family pension including relief by the family. The case was not found relatively indigent condition, hence, not considered. Total 117 cases were reviewed by the CRC for appointment in Postman category against 25 vacancies. The respondents submitted that the OA filed by the applicant is devoid of any merit and no case has been made out for interference of this Tribunal and the OA deserves to be dismissed. oa 11, Heard the learned counsels for the applicant and the respondents.
12. The learned counsel! for the applicant reiterated the facts in brief. He has also cited the Single Bench judgment of this Tribunal vide order dated 05.04.2017 in OA No.295/2014 in the case of Ravindra Page 7 of 48 8 OA No.2034/2013 Ramchandra Bhandwalkar Vs. Union of India & Others, wherein in Paragraphs Nos.7 to 20 it has been held that :
"7. During the arguments, learned counsel for the applicant relied on judgment of this Tribunal in OA No.475/2012 (Shri Avinash V. Bhoir Vs. The Union of India and Another) in which it was held that "With the passing of the DoPT OM dated 26.07.2012, all pending cases including that of the applicant deserve consideration, with the overall condition that only the most deserving candidates will be eligible for appointment on compassionate grounds".
He has also cited the judgment of the Hon'ble Supreme Court in Balbir Kaur and Another Vs. Steel Authority of India limited and Others, 2000(6) SCC 493 wherein the Hon'ble Supreme Court observed that "Family Benefit Scheme was not a substitute for compassionate appointment which could not be denied on the ground that Family Benefit Scheme was available".
In another order of the Principal Bench of Central Administrative Tribunal in Smt Anar Kali and Another Vs. Union of India and Others (OA No.512 of 2000 decided on 21.05.2001), it was held that "While considering the case on compassionate ground, authorities cannot take into consideration the retirement/terminal benefits given to the family members of the deceased employee and the retiral benefits given to the family members of the deceased employee could not be equated with the benefit of compassionate appointment".
In the order passed by the Central Administrative Tribunal, Kolkata Bench, Kolkata in OA No.1617 of 1999 decided on 01.12.2000 (Sabita Majumdar and Another Vs. The Union of India and Ors.) it has been held that pension is not a substitute for appointment on compassionate 'ground. Similar view has also been held by the Jabalpur Bench of the Central Administrative Tribunal in OA No.186 of 2000 decided on 24.02.2003 (Ajay Kumar Burman Vs. Union of India and Ors.), the Lucknow Bench of the Central Administrative Tribunal in OA No.312 of 2004 decided on 20.04.2012 (Anand Kumar Misra Vs. Union of India and Another) and the Bombay Bench of the Central Page 8 of 48 9 OA No.2034/2013 Administrative Tribunal in OA No.2050 of 2013 (Sushil Ramchandra Chamke Vs. Union of India and Others).
The Hon'ble Apex Court in Govind Prakash Verma Vs. Life insurance Corporation of India and Others, 2005 (10) SCC 289 had heid that the scheme of compassionate appointment of the respondents was over and above whatever was admissible to the legal representatives of the deceased employee as benefits of service which they get on death of the applicant and hence compassionate appointment cannot be refused on ground that any member of the family had received such benefits.
8. The respondents, on the other hand, have relied upon a number of judgments to support their case for rejection of the applicant's case. They have cited the judgment of the Hon'ble Supreme Court in Chief Engineer (Naval Works) & Anr. Vs. A.P. Asha, (2015) 15 SCC 310 in which the Hon'ble Apex Court had held that "Tribunal had erred in directing the appellants to consider case of respondent again especially when same had been considered and rejected thrice on the ground that more deserving candidates were available at the relevant time".
In Union of India & Anr. Vs. Shashank Goswani & Anr., AIR 2012 SC 2294, the Hon'ble Supreme Court emphasised that appointments on compassionate ground have to be made in accordance with rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.
In State of Gujarat and Others Vs. Arvindkumar T. Tiwari and Another, 2012 (2) SCC (L&S)} 795, Chief Manager, BSNL Vs. Rajesh, 2016 (2) SLR 28, Santosh Kumar Dubey Vs. State of U.P. & Ors., 2009 (2) SCC (L&S) 224 and MGB Gramin Bank Vs. Chakrawarti Singh, 2013 (3) AISLI 328, it has been held that compassionate appointment cannot be claimed as a matter of right and it is not another method of recruitment. It is an exception to Constitutional provisions contained in Articles 14 and 16 of Constitution. Object of compassionate employment is to enable family of deceased to overcome sudden financial crisis it finds itself facing and not to confer any status upon it.
Page 9 of 48 10 OA No.2034/2013In State Bank of India and Another Vs. Somvir Singh, 2007(2) SCC (L&S) 92, the Hon'ble Supreme Court emphasised that the scheme providing for compassionate appointment is only where the deceased employee left his family in penury or without any means of livelihood and therefore financial condition of the deceased employee is an important criteria for eligibility of a dependent of the deceased.
in Umesh Kumar Nagpal Vs. State of Haryana and Others, 1994 SCC (L&S) 930, the Hon'ble Supreme Court has laid down the principle that offering compassionate employment as a matter of course irrespective of the financial condition of the family of the deceased and making compassionate appointments in posts above classes Ill and IV, is legally impermissible.
9. | have heard the learned counsels for both the parties. | have perused the documents submitted by them alongwith their pleadings. | had also called for the records relating to the grant of compassionate appointment to the applicant. The issue to be decided in the present OA is whether the applicant is entitled for compassionate appointment as per the existing Rules,
10. The Government have issued guidelines on compassionate appointment from time to time including the appointment No.14014/6/94-Estt (D) OM 09.10.1998. The following principles are while considering cases appointment:
i} The Appointment on compassionate ground may be done when:
(a) a Government Servant dies in harness or is retired on medical grounds before attaining the age of 55 years (57 years for Group 'D' Government servants);
(b) the family of deceased Government Servant is in indigent condition;
(c) the person seeking compassionate appointment is a dependent family member of the deceased Government servant, that is to say that he/she is Page 16 of 48 11 OA No.2034/2013 Spouse; son; daughter; brother/sister (in the case of unmarried Govt. Servant) of the deceased Government servant who was wholly dependent on him;
(d) the claimant has attained the age of 18 years;
(e) the claimant is eligible and suitable for the post on which his compassionate appointment is being considered, ~
ii) Any request for compassionate appointment may be considered with greater sympathy by applying relaxed standards depending on the facts and circumstances of the case.
iii) 5% of the vacancies are to be filled by appointment on compassionate grounds.
iv) Compassionate appointments can be made in Group 'C' or 'D' post only.
v) While considering an application for compassionate appointment, a balanced and objective assessment of financial condition must be made taking into account its assets and liabilities, presence of earning member, size of the family, ages of children, and essential needs of the family etc.
vi) An application for compassionate appointment shall not be rejected merely on the ground that the family of Govt.
Servant has received benefits under various welfare schemes,
vii) Compassionate appointment shail have precedence over absorption of surplus employees and regularization of daily wagers.
11. By an office memorandum dated 5" May 2003, following modifications were introduced in the compassionate appointment scheme-
Page 11 of 48 12 OA No. 2034/2013(a) If compassionate appointment to genuine and deserving persons cannot be offered in the first year due to non-availability of regular vacancy, his name must be continued for consideration for one more year.
(b) The maximum time a person's name can be kept under consideration for offering Compassionate Appointment will be three years.
12. The DOPT OM No.14014/19/2002-Estt (D) dated 05.05.2003 has provided the following:
"1. The undersigned is directed to refer to Department of Personnel and Training OM No.14014/6/94 Estt(D) dated October 9, 1998 and (O.M.) No.14014/23/99 Estt, (D} dated December 3, 1999 on the above subject and to say that the question of prescribing a time limit for making appointment on compassionate grounds has been examined in the light of representations received, Stating that the one year limit prescribed for grant of compassionate appointment is often resulting in depriving genuine cases seeking compassionate appointments on account of regular vacancies not being availabie, within the prescribed period of one year and within the prescribed ceiling of 5% direct recruitment quota.
2. It has therefore been decided that if compassionate appointment te genuine and deserving cases as per the guidelines contained in the above OMs is not possible in the first year due to non-availability of regular vacancy the prescribed committee may, review such cases to evaluate the financial conditions of the family to arrive at a decision as to whether a particular cases warrants extension by one more year for consideration for compassionate appointment by the Committee, subject to availability of a clear vacancy within the prescribed 5% quota. if on scrutiny by the committee a case is Page 12 of 48 13 OA No.2034/2013 considered to be deserving, the name of such a person can be continued for consideration for one more year.
3. The maximum time a person's name can be kept under consideration for offering compassionate appointment will be three years, subject to the condition that the prescribed committee has reviewed and certified the penurious condition of the applicant at the end of the first and the second year. After three years, if compassionate appointment is not possible to be offered to the applicant, his case will be finally closed and will not be considered again."
13. The issue of compassionate appointment has been extensively dealt with in a catena of judicial pronouncements. In the case of Mukesh Kumar Vs.Union of India & Ors., (2007) 2 SCC (L&S) 926 the Hon'ble Suprerne Court had remitted the appellant's case back to the Central Administrative Tribunal for fresh consideration since no indication was available on how the departmental authorities had arrived at the conclusion that the family was not in indigent condition. In Syed Khadim Hussain Vs, State of Bihar & Ors., (2006) 9 SCC 195 the Hon'ble Apex Court had held that the rejection of the appellant's application was not justified as at the time of rejection appellant had attained above 18 years of age, although at the time of filing the application his age was around 13 years. In Govind Prakash Verma Vs. Life Insurance Corporation of india & Ors. (Supra) the Hon'ble Apex Court had held that the scheme of compassionate appointment is over and above whatever is admissible to legal representatives of the deceased employee as benefits of service which they get on death of the employee. Hence compassionate appointment cannot be refused on the ground that any member of family had received such benefits. In Balbir Kaur & Anr. Vs. Steel Authority of India Ltd. & Ors. (Supra) and Smt. T.K. Meenakshi and Anr. Vs. Steel Authority of India Ltd. & Ors. (Civil Appeal No.11882/1996), 2002 LAB 1.C.1900, the Hon'ble Supreme Court had held that benefit of compassionate appointment cannot be negatived on 7 Page 13 of 48 14 OA No.2034/2013 ground of introduction of scheme assuring regular monthly income to a disabled employee or dependents of deceased employee. in Sudhir Sakharam Joshi Vs. Bank of Maharashtra & Anr., 2003(1} Wih.L.J. the Nagpur Bench of Hon'ble High Court of Bombay had directed the respondents to give an appointment to the petitioner in clerical cadre since his application for compassionate appointment was rejected without assigning any valid reasons. The Hon'ble High Court had held the fact that retiral benefits given to the deceased cannot be a good ground for such rejection and no material was produced to show that any detailed inquiry was made in order to determine the financial condition of the deceased family. Similarly in Rajani (Smt.) and Anr. Vs. Divisional Controller of M.S.R.T. Corporation, Bhandara & Ors., 2003-IV-LLJ (Suppl)-NOC-474, the Hon'ble High Court of Bombay had ordered grant of compassionate appointment even, if necessary, by creating supernumerary post to the wife of an employee compulsorily retired on medica! ground since such compassionate appointment was denied for more than 10 years resulting in grave injustice to the family of the said employee. In Arun Kumar Vs. Union of India & Ors., 2002 LAB.I.C. 3196, the Hon'ble Himachal Pradesh High Court had held that grant of family pension or the fact that the family of the deceased employee was receiving benefit under various welfare schemes cannot be a ground to deny compassionate appointment. In Smt. M. Reddamma Vs. APSRTC & Ors., WP No.23759/1995 dated July 17, 1996 the Hon'ble High Court of Andhra Pradesh had gone to the extent of issuing a writ of mandamus to appoint the petitioner in a suitable post within three weeks on the ground that the Apex Court and the High Court have held that the appointment on compassionate grounds should be provided to the dependents of the deceased employee immediately after the death of the bread- winner to enable the family to tide over the sudden crises and denial of appointment even after a lapse of six years of making representation amounts to disobedience of the mandate of the Apex Court without any satisfactory explanation for the delay. In Mona (Smt.) & Anr. Vs. Municipal Corporation of Dethi & Others (WP No.4952/1994 dated 11.07.1996), the Hon'ble High Court of Delhi had quashed the impugned order denying compassionate Page 14 of 48 15 OA No.2034/2013 appointment on the ground that relevant record justifying denial of appointment was not produced. In Swati Chatterjee Vs. State of West Bengal & Ors.(W.P.S.T. No.21/2010 decided on 02.02.2010) the Hon'ble Calcutta High Court had held that wife of the deceased employee was entitled to compassionate appointment and family pension being one kind of deferred payment and earned by deceased cannot be a valid ground for denying compassionate appointment. In OA No.2060/2008 this Tribunal in its order dated 22.01.2009 had considered the OA in the matter of compassionate appointment and held that the © respondents cannot reject the application for compassionate appointment on the ground that the applicant did not apply within a period of five years. it was held by this Tribunal that the applicant was a minor at the time of the death of his father and deserved to be considered for compassionate appointment after attaining the age of a major. Similarly, in OA No.1008/2005 in Akeel Ahmed Khan Vs. General Manager, State Bank of India & Ors., 2003 (4) MPHT 157, the Hon'ble High Court of Madhya Pradesh had held that if an appointment on "compassionate ground is rejected on the grounds of gratuity and provident fund amount received by the family, it will frustrate the entire purpose of compassionate ground appointment. In Aparna Narendra Zambre & Anr. Vs. Assistant Superintedent Engineer, Sangli & Ors., 2011(5)Mh.L.J., WP No.1284/2011 decided on 01.08.2011 it was held by the Hon'ble Bombay High Court that the fact of receipt of family pension cannot be the basis to deny benefit of compassionate appointment. In the case of Director General of Posts & Ors. Vs. K. Chandrashekar Rao, Civil Appeal No.9049/2012 arising out of SLP (C) No.19871/2009 decided on 13.12.2012 and similar Civil Appeals the Hon'ble Apex Court had laid down the principle that the 1998 Scheme floated by the Government should receive a liberal construction and application as it is stated to be a social welfare scheme and largely tilted in favour of the members of the family of the deceased employee. The purpose appears to be to provide them with recruitment ona regular basis rather than circumvent the same by adopting any other measure. In Nirmala Saha & Anr. Vs. Union of India & Ors., 2010(124) FLR 88, the Hon'ble Calcutta High Court had observed a "
Page 15 of 48 16 OA No.2034/2013that by merely placing the application for compassionate appointment in three consecutive years from the date of filing the application irrespective of the fact that there were no vacancies will result in the applicant being deprived of the benefit under the scheme. in the case of National Institute of Technology Vs. Niraj Kumar Singh, (2007) 2 SCC 481 the Hon'ble Apex Court had laid down the following principle with regard to compassionate appointment;
"All public appointments must be in consonance with Article 16 of the Constitution of India. Exceptions carved out therefore are the cases where appointments are to be given to the widow or the dependent children of the employee who died in harness. Such an exception is carved out with a view to see that the family of the deceased employee who has died in harness does not become a destitute. No appointment, therefore, on compassionate ground can be granted to a person other than those for whose benefit the exception has been carved out. Other family members of the deceased employee would not derive any benefit thereunder."
In Haryana SEB Vs. Naresh Tanwar, (1996) 8 SCC 23, Santosh Kumar Dubey Vs. State of U.P., (2009) 6 SCC 481, Haryana SEB Vs. Krishna Devi, {2002} 10 SCC 246, State of U.P.Vs. Paras Nath, 1998, (1998} 2 SCC 412 and National Hydroelectric Power Corporation Vs. Nanak Chand, (2004) 12 SCC 487, the Hon'ble Apex Court had recognized the need for providing compassionate appointment when the family of the deceased is in dire needs. In State Bank of India Vs. Anju Jain, (2008) 8 SCC 475 the Hon'ble Supreme Court had pertinently observed the following;
"Appointment on compassionate ground is never considered a right of a person. in fact, such appointment is violative of rule of equality enshrined and guaranteed under Article 14 of the Constitution. As per settled law, when any appointment is to be made in Government or semi-Government or in public Page 16 of 48 14, 17 OA No.2034/2013 Office, cases of all eligible candidates must be considered alike. That is the mandate of Article 14, Normally, therefore, State or its instrumentality making any appointment to public office, cannot ignore such mandate. At the same time, however, in certain circumstances, appointment on compassionate ground of dependents of the deceased - employee is considered inevitable so that the family of the deceased employee may not starve. The primary object of such scheme is to save the bereaved family from sudden financial crisis occurring due to death of the sole bread earner, It is thus an exception to the general rule of equality and not another independent and parallel source of employment."
In the case of V. Sivamurthy Vs. State of A.P., (2008) 13 SCC 730, the Hon'ble Supreme Court have observed the following in respect of principles relating to compassionate appointment:
aeeens 9. The principles relating to compassionate appointments may be summarized thus :
(a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are well recognised exception to the said general rule, carved out in the interest of justice to meet '<ertain contingencies.
(b) Two well recognized contingencies which are carved out as exceptions to the general rule are:
(i} appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the bread-winner while in service, Page 17 of 48 18 OA No. 2034/2013
(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the bread winner.
Another contingency, though less recognized, is where land holders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project-affected persons, (Particularly where the law under which the acquisition .is made does provide for market value and solatium, as compensation).
(c}) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shail be strictly in accordance with the scheme governing such appointments and against existing vacancies.
(d) Compassionate appointments are permissible only in the case of a dependant member of family of the employee concerned, that is spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, class Ill! and 1V posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class | or 1 posts."
15. A perusal of the catena of judgments pronounced by the Hon'ble Apex Court, Hon'ble High Court and various Benches of this Tribunal discussed at paras 13 and 14 above makes it abundantly clear that the Courts of law have firmly supported the principle that compassionate appointment cannot be denied merely because the family of the deceased have got some financial benefits consequent to the death of the sole bread winner of the family. The overwhelming trend of the judgments is that the applicants for compassionate appointment have to be Page 18 of 48 19 OA No.2034/2013 considered for providing a fresh job so that the immediate financial need can be met and dire consequences of distress can be avoided. At the same time in various judgments the Courts have also laid down the principle that compassionate appointment is not a matter of right and cannot take away the principles enunciated in the constitution of equal opportunity for employment. In V. Sivamurthy Vs. State of A.P., (2008) 13 SCC 730, Santosh Kumar Dubey Vs. State of U.P.,(2009) 6 SCC 481) it has been held that there is no vested right on the relatives of the deceased employee to seek and _ obtain compassionate appointment. In Umesh Kumar Nagpal Vs. State of Haryana, (1994) 4 SSC 138 the Hon'ble Apex Court clearly stated that in public service appointments should be made strictly on the basis of open invitation of applications on merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without eny means of livelihood.
16. In addition to carefully considered the the above, | have case laws cited by the paras 5 to 8 applicant and the respondents at above. The overwhelming trend of judgments by the various judicial fora is the underlying principle that compassionate appointment is not a matter of right, but compassionate appointment, eligible, cannot wherever be denied merely because the family of the deceased has received some terminal benefits. Taking this into view, Government in their own wisdom have earmarked 5% of the direct recruitment vacancies for compassionate appointment to be given to the wards/dependents of the deceased Government employees. It is obvious that-such compassionate appointment can be given strictly as per rules and to oniy those who are considered to be more eligible vis-a-vis other applicants. | have perused the minutes of the meeting of the Circle Relaxation Committee, Maharashtra Circle for considering the request of the applicants who are 12th pass for appointment on compassionate ground as Postal Assistant/Sorting Assistant convened on 13.09.2012. | have noted the contents of the respondent's file. As per the Recruitment Pad Page 19 of 48 20 OA No,2034/2013 Rules 2011, the educational qualification prescribed is 10+2 or 12th class pass with atleast 60% marks from recognised University/Board of School Education, Board of Secondary Education, with English as a compulsory subject (excluding vocational stream), 55% for OBCS and 45% for SCs/STs. It is also stipulated that the candidates should have studied local language of the state or Union Territory of the concerned Postal Circle or Hindi as a subject atleast in Matriculation. This stipulation under the Recruitment Rules also finds a place in the Minutes of the Circle Relaxation Committee meeting on 13.09.2012. It has also been noted that the Circle Relaxation Committee followed the Government of India, Ministry of Personnel, Public Grievances and Pension vide Notification No.14014/6/94-Estt (D) dated 09.09.1998 and decided not to relax educational qualification for direct recruitment of Postal Assistant/Sorting Assistant. The Circle Relaxation Committee also noted that there were 25 vacancies available in PA/SA cadre for appointment on compassionate grounds.
17. On perusal of the list of the candidates considered for compassionate appointment, it is found that the applicant's educational qualification has been marked as 12" with 44% marks. The candidate belongs to Open Category and has scored 20 points in the comparative assessment of candidates. In the final list of selected candidates there are four candidates who scored less than 50 points in the oral assessment, i.e. lower than the applicant. The candidates at serial No.22 and 23 have scored 48 points. The candidate at serial No.24 has scored 45 points and candidate at serial No.25 has scored 43 points. However, all of them have scored much higher than the cut-off marks in the qualifying examination of 12" standard. The marks scored by them are 58.17, 73.83, 71.17 and 60.50 respectively. Therefore, the non-selection of the above mentioned four candidates cannot be questioned and the fact that the applicant belongs to the open category and has scored only 44% in 12% standard, makes him ineligible for selection. | find no arbitrariness or illegality in the non selection of the candidate as per the rules prevalent at the Page 20 of 48 21 OA No.2034/2013 time the Circle Relaxation Committee meeting took place on 13.09.2012.
18. However, in 2012, the Government issued the DOPT OM No.F.No,14014/3/2011-Estt.(D) _ dated 26.07.2012 wherein the limit of three years for consideration of the applicants for compassionate appointment has been removed. The relevant portion of the OM reads as follows:-
"The primary objective of scheme for compassionate appointment circulated vide OM No.14014/6/94-Estt(D) dated 09.10.1998 is to provide immediate assistance to receive the dependent family of the deceased or medically retired Government servant from financial destitution i.e. penurious condition. The Hon'ble Supreme Court in its judgment dated 05.04.2011 in Civil Appeal No.2206 of 2006 filed by Local Administration Department Vs. M. Selvanayagam @ Kumaravelu has observed that "an appointment made many years after the death of the employee or without due consideration of the financial resources availabie 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 & 16 of the Constitution and hence, quite bad and illegal. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind".
2. This Department's OM No.14014/6/1994-Estt.(D) dated 09.10.1998 provided that Ministries/Departments can consider requests for compassionate appointment even where the death or retirement.on medical grounds of a Government servant took place long back, say five years or so. While considering such belated requests it was, however, to be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the Government Page 22 of 48 22 OA No.2034/2013 servant in order to receive it from economic distress, The very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. Therefore, examination of such cases call for a great deal of circumspection. The decision to make appointment on compassionate grounds in such cases was to be taken only at the level of the Secretary of the Department/Ministry concerned.
3. Subsequently vide the Department's OM No.14014/19/2002-Estt (D) dated 05" May, 2003 a time limit of three years time was prescribed for considering cases of compassionate appointment. Keeping in view the Hon''bie High Court Allahabad judgment dated 07.05.2016 in Civil Misc. Writ Petition No.13102 of 2010, the issue has been re-examined in consultation with Ministry of Law. tt has been decided to withdraw the instructions contained in the OM dated 05.05.2003."
19. It is also found that in a Gazettee Notification dated January 27, 2014, amendments have been made to the Department of Posts (Postal Assistants and Sorting Assistants) (Group ¢ non-Gazeited), Recruitment Rules 2011 by which the cut-off marks for different communities have been removed and only a pass in the qualifying examination has been prescribed. The amendment in GSR-62(E) reads as follows:-
"(2) In the Schedule to the Department of Posts (Postal Assistants and Sorting Assistants) (Group C non-Gazetted), Recruitment Rules, 2011,-
(i) against serial number 1 relating to post of Postal Assistant and Sorting Assistant (in offices other than Foreign Posts Organisation},-
(a) in column 7, in the entries, in item (i) (A) the words and figures "with at least 60% marks" shall be omitted;Page 22 of 48
23 OA No,2034/2013 (B) the figures and words "55% for Other Backward Classes and 45% for Schedule Castes/Scheduled Tribes"
shall be omitted;
(b) in column 10, in the entries, in sub-item (i) of item (a), for the words and figures "obtained at least 50% marks in", the word "passed" shail be substituted;
(ii) against serial number 1 relating to post of Postal Assistant and Sorting Assistant (in the Foreign Posts Organisations in Delhi, Kolkata, Chennai and Mumbai), in column 7, in the entries, in item({i), -
(a) the words and figures "with at least 60% marks" shall be omitted;
(b) the figures and words "55% for Other Backward Classes and 45% Scheduled Castes/Scheduled Tribes" shall be omitted."
20. 'In view of the removal of the restriction of three years for consideration for compassionate appointment and the removal of the cut-off marks in the qualifying examination and taking into account the tenor of various judicial pronouncements, it is my view that the applicant should be given one more chance for consideration vis-a-vis other applicants for compassionate appointment. Accordingly, the respondents are directed to consider the case of the applicant for compassionate appointment in the next meeting of the Circle Relaxation Committee strictly as per rules and, if found eligible vis-avis the other candidates, he may be given appointment on compassionate ground."
13. Learned counsel for the applicant also places reliance on the decision of the High Court of Judicature at Bombay Bench at Aurangabad in Writ Petition No.6267/2018 in the case of Dnyaneshwar Ramkishan Musane Vs. The State of Maharashtra & Others vide order dated 11.03.2020 wherein it has been held in para 5, as under:
Page 23 of 48 24 GA No.2034/2013"5S. After hearing learned advocates for the parties and going through the Government Resolution dated 20.05.2015, we are of the view that the prohibition imposed by the Government Resolution dated 20.05.2015 that name of any legal representative of deceased employee would not be substituted by any other legal representative seeking appointment on compassionate ground, is arbitrary, irrational and unreasonable and violates the fundamental rights guaranteed by Article 14 of the Constitution of India. As the per the policy of the State Government, one legal representative of deceased employee is entitled to be considered for appointment on compassionate ground. The prohibition imposed by the Government Resolution dated 20.05.2015 that if one legal representative of deceased employee stakes claim for appointment on compassionate ground, then name of another legal representative of that deceased employee cannot be substituted in the list in place 928-WP-6267- 2018.0odt of the other legal representative who had submitted his/her application earlier, does not further the object of the policy of the State Government regarding appointments on compassionate grounds. On the contrary, such prohibition frustrates the object for which the policy to give appointments on compassionate grounds is formulated. It is not the case of respondent no.2 that petitioner's mother was given appointment on compassionate ground and then she resigned and proposed that petitioner should be given appointment. The name of petitioner's mother was in waiting list when she gave up her claim and proposed that the petitioner should be considered for appointment on compassionate ground.
6. In this view of the matter, we find that the restriction imposed by the Government Resolution dated 20.05.2015 that name of legal representative of deceased employee cannot be considered in place of another legal representative of that deceased employee whose name happens to be in the waiting list for giving appointment on compassionate ground, is unjustified."
14. Learned counsel for the respondents submitted that the reason given in paragraph Nos.3 and 5 of the impugned order have been Page 24 of 48 25 OA No.2034/2013 correctly stated by the CRC. He further stated that the order passed by the respondents is neither iliegal nor arbitrary nor bad in law. Nor is it in contravention to the rules on the subject. He states that the case of the applicant was considered and rejected with the ground that the family - of the deceased Government servant is not found to be indigent condition. This was already communicated to the applicant with proper reason of rejection. The respondents further stated that while considering the request for compassionate appointment, the Committee made balanced and objective assessment of financial condition of the family of the deceased employees taking into account assets and liabilities benefits received under the various welfare scheme, terminal benefits and all other relevant factors such as presence of earning member, size of the family, unmarried daughters, age of the children, Service left out of the deceased employee, essential needs of the family etc. The claimant has received terminal benefits of Rs.7,16,317/- and the family pension including relief by the family as on date of CRC meeting is Rs.6,459/-. The case was not found relatively in indigent condition as other severe indigent cases were in the list for consideration. Hence the Page 25 of 48 26 OA No.2034/2013 C.R.C. considered and rejected the case for compassionate appointment. Total 107 cases under compassionate grounds were reviewed by the CRC for appointment in Postman category held from 06.07.2009 to 10.07.2009. Only 25 vacancies were available for compassionate appointment quota in Postman Cadre and accordingly CRC approved 15 cases for appointment. 9 cases recommended for referring to Directorate for approval, 9 cases for relaxation in time limit, > cases proposed to be examined relative indecency in next CRC meeting and 1 CAT Case which was pending due to want to vacancies was examined and approved.
15. He further stated that the facts in the present OA is limited in view of para 20 of judgment of this Tribunal in OA No.295/2014 in the case of Ravindra Ramchandra Bhandwalkar (supra). The restrictions placed by DoPT OM dated 05.05.2003 was removed and the same has been mentioned in para 12. However, that is not the relief prayed by the applicant.
16. He has placed reliance on the judgment of Supreme Court in Civil Appeal No.988/2019 arising out of SLP No.7079/2016 decided on Page 26 of 48 27 OA No.2034/2013 16.01.2019 in the case of State of Himachal Pradesh Vs. Shashi Kumar, wherein it has been stated as under :
"Learned senior counsel appearing on behalf of the appellants has sought to distinguish the above observations, in the judgment in Canara Bank {supra}, by submitting that it is not the case of the State of Himachal Pradesh that mere receipt of family pension would disable an applicant from submitting an application for compassionate appointment or preclude consideration of the claim. On the contrary, the submission which is urged is that the Scheme requires consideration of all relevant sources of income and hence, receipt of family pension would be one of the criteria which would be taken into consideration in determining as to whether the family of the deceased employee is in indigent circumstances.
We find merit jn this submission, for the simple reason, that it 4 is in accord with the express terms of the Scheme of 18 January :
1990, as modified by the State. The Scheme contemplates that payments which have been received on account of welfare measures provided by the State including family pension are to be taken into account. Plainly, the terms of the Scheme must be implemented.
For these reasons, we have come to the conclusion that the High Court was not justified, based on the decision in Govind Prakash Verma (supra) in issuing a direction to the State to actina manner contrary to the express terms of the Scheme which require that the family pension received by the dependants of the deceased employee be taken into account.
17. Learned counsel for the respondents placed reliance on the decision of the Supreme Court in Civil Appeal No.5122/2021 decided on 13.09.2021 in the case of The Director of Treasuries in Karnataka & ae Page 27 of 48 28 OA No.2034/2013 Another Vs. V. Somyashree, wherein in para 7 and 8 it has been held that:
"7. While considering the submissions made on behalf of the © rival parties a recent decision of this Court in the case of N.C. Santhosh (Supra) on the appointment on compassionate ground is required to be referred to. After considering catena of decisions of this Court on appointment on compassionate grounds it is observed and held that appointment to any public post in the service of the State has to be made on the basis of principles in accordance with Articles 14and16of the Constitution of India and the compassionate appointment is an exception to the general rule. It is further observed that the dependent of the deceased Government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the State's policy. It is further observed and held that the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim of compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. It is further observed he/she is, however, entitled to seek consideration in accordance with the norms as applicable on the day of death of the Government employee. The law laid down by this Court in the aforesaid decision on grant of appointment on compassionate ground can be summarized 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; ut Page 28 of 48 29 OA No.2034/2013
(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down bythe 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.
8. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, we are of the opinion''that as such the High Court has gone beyond Rule 2 and Rule 3 of the Rules, 1996 by directing the appellants to consider the application of the respondent herein for appointment on compassionate ground as "divorced daughter'. Rule 2 and Rule 3 of the Rules, 1996 read as under:
"2. Definitions: (1) In these rules, unless the context otherwise requires:
(a) "Dependent of a deceased Government servant"
means
(i) in the case of deceased male Government servant, his widow, son, (unmarried daughter and widowed daughter) who were dependent upon him; and were living with him; and
(ii) in the case of a deceased female Government servant, her widower, son, (unmarried daughter and widowed daughter) who were. dependent upon her and were living with her; >
(iii) 'family' in relation to a deceased Government servant means his or her spouse and their son, (unmarried daughter and widowed daughter) who were living with him.
(2) Words and expressions used but not defined shall have the same meaning assigned to them in wf Page 29 of 48 30 OA No,2034/2013 the Karmataka Civil Services (General Recruitment) Rules, 1977."
6. The eligibility on the death of a female employee is in terms of Rule 3(2){ii) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, which reads as follows:
Rule 3(2)(i):
'(ii) in the case of the deceased female Government servant;
(a) a son;
(b) an unmarried daughter, if the son is not eligible or for any valid reason he is not willing to accept the appointment;
(c) the widower, if the son and daughter are not eligible or for any valid reason they are not willing to accept the appointment. ,
(d) a widowed daughter, if the widower, son and unmarried daughter are not eligible or for any valid reason they are not willing to accept the appointment.
3, XXX.
4. XXX, 8.1. From the aforesaid rules it can be seen that only 'unmarried daughter' and 'widowed daughter' who were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be 'dependent' of a deceased Government servant and that 'an unmarried daughter' and 'widowed daughter' only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant. Rule 2 and Rule 3 reproduced hereinabove do not include 'divorced daughter' as eligible for appointment on compassionate ground and even as 'dependent', As observed Page 30 of 48 31 OA No.2034/2013 hereinabove and even as held by this Court in the case of N.C, Santhosh (Supra), the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment. The word 'divorced daughter' has been added subsequently by Amendment, 2021. Therefore, at the relevant time when the deceased employee died and when the original writ petitioner -- respondent herein made an application for appointment on compassionate ground the 'divorced daughter' were not eligible for appointment on compassionate ground and the 'divorced daughter' was not within the definition of 'dependent.' 8.2. Apart from the above one additional aspect needs to be noticed, which the High Court has failed to consider, It is to be noted that the deceased employee died on 25.03.2012. The respondent herein -- original writ petitioner at that time was a married daughter. Her marriage was subsisting on the date of the death of the deceased i.e. on 25.03.2012. Immediately onthe death of the deceased employee, the respondent initiated the divorced proceedings under Section 13B of the Hindu Marriage Act, 1955 on 12.09.2012 for decree of divorce by mutual consent. By Judgment dated 20.03.2013, the Learned Principal Civil Judge, Mandya granted the decree of divorce by mutual consent, That immediately on the very next day i.e. on 21.03.2013, the respondent herein on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground. The aforesaid chronology of dates and events would suggest that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained. Otherwise, as a married daughter she was not entitled to the appointment on compassionate ground. Therefore, looking to the aforesaid facts and circumstances of the case, otherwise also the High Court ought not to have directed the appellants.to consider the application of the respondent herein for appointment on compassionate ground as 'divorced daughter'. This is one additional ground to reject the application of the respondent for appointment on compassionate ground.
8.3. Even otherwise, it is required to be noted that at the time when the deceased employee died on 25.03.2012 the marriage between the respondent and her husband was subsisting. Therefore, at the time when the deceased employee died she was a married daughter and therefore, also cannot be said to be 'dependent' as Page 31 of 48 32 OA No.2034/2013 defined under Rule 2 of the Rules 1996. Therefore, even if it is assumed that the 'divorced daughter' may fall in the same class of 'unmarried daughter' and 'widowed daughter' in that case also the date on which the deceased employee died she -- respondent herein was not the "divorced daughter' as she obtained the divorce by mutual consent subsequent to the death of the deceased employee. Therefore, also the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee."
18. Learned counsel for the respondents further stated that the judgment of this Tribunal in the case of Ravindra Ramchandra Bhandwalkar (supra) is not relevant as facts in that case were different. He also stated that the impugned order issued by the respondents is in order and the applicant could not make any case,
19. Learned counsel for the applicant repeated the submissions made by him earlier and also stated that the citation produced by the learned counsel for the respondents are not relevant as the terminal benefits paid to the applicant was the sole point of rejection of his request for compassionate appointment for which the present OA is preferred. He further referred to paragraphs Nos.4 to 11 of the rejoinder dated 21.08.2023 wherein he has highlighted the following points:-
"4. The father of applicant died on 23.11.2006 due to "Severe Cordials Heart Attack" immediately after death of applicant's father, the respondent no.3 directed the applicant's family to apply Page 32 of 48 33 OA No.2034/2013 for appointment on compassionate ground, in place of his father. It was further mentioned in the said communication that there is provision for appointment on compassionate ground, as per the directions of the respondent no.3 the applicant applied for appointment on compassionate ground to the respondent on 20.01.2007 along with all necessary educational qualification with documents. The mother of applicant has made representation to the Post Master General for appointment of applicant on compassionate ground she further submitted that the pensionary benefits including gratuity, GPF are adjusted against loan amount taken for marriage of her daughter and still Rs. four lack loan remain against her, economic condition is hand to mouth & hence she requested to the postal department for grant of appointment of the applicant on compassionate ground. A copy of said application dated 19.08.2007 is annexed as Annexure-A collectively to the original application. It is further submitted that the applicant has made representation to the Principle Post master for grant of compassionate appointment on the post of clerk PA on 02.04.2009. A copies of representation dated 02.04.2009 along with other copies with postal receipt are annexed at Annexure-B collectively to the original application.
5. It is submitted that after death of applicant's father, applicant living with widow mother, 20 year old younger brother, 17 year old unmarried sister. The mother of the applicant is bedridden from 10 years and is facing the financial constrained to maintain family & hence the applicant applied for appointment on compassionate ground to the respondents,
6. It is submitted that without considering the Scheme & guideline issued by DOPT for appointment on compassionate ground the respondent no.3 state away rejected the claim of applicant on the ground of "relatively indigent condition" of applicant rejection of claim of applicant is not straitjacket formula under the scheme of compassionate appointment the respondent are requires to consider as per need and emergency of financial constrained of applicant. A copy of Office Memorandum dated 3% July 2021 issued by Government of India is annexed here with and wat Page 33 of 48 34 OA No.2034/2013 marked as Annexure-A4. As per this memorandum the merit point are required to see by the competent authority before forwarding any alleged communication to the applicant, secondly the merit list is also required to maintained by the authority no exercise done by the respondent no.3 and come with wrong decision which is half- heartedly without looking to the representation dated 03.08.2009 at Annexure A-2 of original application. The applicant family is in need of financial aid, the economic condition is hand to mouth, no one in the family of applicant is employment in any government or private institute the position of family can improve only after giving him an appointment.
7. it is submitted that the father of applicant working as clerk at post office Tumsar he died in harness on 23.12.2006 while in service in very indigent condition. The applicant in his original application categorically submitted that his mother getting pension of Rs.5,212/- P.M she required to pay Rs.2,000/- towards monthly medical expenses towards applicant's mother, Rs.2000/-towards for water supply, electricity bill & house taxes in remaining applicant mother required to maintain house expenses in very meagre amount, without considering this crucial economic condition, the respondent no.3 state away reject request of applicant for recommending his name, that to without following the guide lines issued by DOPT, & issued the impugned communication dated 04.03.2010 the applicants family including his mother, sister and brother are facing very hard days no one is in employment of government institution or private institution.
8. it is further submitted that the respondents have not maintained the waiting list of aspirant and eligible candidate's State away refused the form of applicant there is another Office Memorandum issued by Govt. Of India dated 01.07.2022 js annexed as Annexure-A5 for kind perusal of this Tribunal.
9. It is further submitted that the Govt. Of India issued updated scheme for appointment on compassionate ground and how to follow DOPT under it including 100 point test for appointment nothing has been considered by the respondent No.3 Page 34 of 48 35 OA No.2034/2013 and refused to considered appointment of applicant on compassionate ground. A copy of said Memorandum dated 02.08.222 issued under Central Government is annexed as AnneXure-A-6 on perusal of aforesaid guide-line of memorandum it will be reveals. that nothing has been considered by respondents and state away refused the claim of applicant for appointment on compassionate ground, such action through communication dated 04.03.2010, is appears to be arbitrary, illegal and without following the guide lines & scheme for appointment on compassionate ground, said' communication needs to be quashed and set aside at the hand of this Hon'ble Tribunal by issuing necessary & suitable direction to the respondents to consider the candidature of applicant on compassionate ground.
10. It is further submitted that there are catena of judgment of this Hon'ble Tribunal and judgment of Apex Court thereby directed the authority to consider the appointment of candidate on compassionate ground by following DOPT, Rules under the scheme, here the respondents are measurably failed to consider the candidature of applicant on merit point as per the scheme for appointment and communicate the impugned letter/communication dated 04.03.2012. The respondents filed their reply on the same line which is arbitrary, illegal and not in accordance with scheme and as per the direction of DOPT & law and hence it requires interference at the hand of this Hon'ble Tribunal by issuing suitable directions to the respondents.
11. It is humbly submitted that the claiming appointment on compassionate ground by the ward of class-ill, Class-IV employee is requires be consider their claim by considering the scheme; for appointment it is mercy petition of applicant. "The object of the compassionate scheme is to grant appointment on compassionate ground to a dependant family member of a government servant dying in harness or who retired on medical ground thereby leaving his/ her family in penury and without any means of livelihood and to relieve the family of the government servant concerned from financial destitution and to help it get over the emergency. Accordingly Relative Merit point system assigning maximum 100
-
o Page 35 of 48 36 OA No,2034/2013 point based on various parameters/attributes for assigning weightage has be devised in the Ministry. Nothing has been followed by the respondents and state away rejected the claim of applicant. A copy of said Office Memorandum dated 28.02.2022 issued by Govt. Of India Ministry of Information and Broadcasting is annexed as Annexure-A7 for kind perusal."
20. Learned counsel for the respondents has submitted his sur- rejoinder in which it has been stated that as per the procedure one of the members from the family of deceased employee can apply for the compassionate appointment but only 5% vacancies can be filled from the compassionate appointment. Accordingly, the applicant also applied for the zppointment on Compassionate ground. Reply on the application of the applicant was already given by the Respondent no.3 on 4,3.2010, which is self-explanatory.
20(a). The primary objective of scheme for compassionate _ appointment circulated vide DOPT OM No. 14014/6/94-Estt-(D) dated 09.10.1998 is to provide immediate assistance to relieve the dependent family of the deceased or medically retired Government servant from financial destitution i.e penurious condition. There is no provision to take into consideration the loan amount of deceased employee while Page 36 of 48 37 OA No.2034/2013 considering the case. Therefore, the contention of the applicant that the liabilities are not taken in to account Is not correct.
20(b). The Hon'ble Supreme Court in Director of Treasuries in Karnataka & another Vs. V. Somyashree, 2021 SSC Online SC 704 had occasion to consider the principle governing the grant of appointment compassionate ground. After referring to its earlier decision in N.C. Santhosh Vs. State of Karnataka, 2020 7 SCC 617, the Apex Court has summarized the 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, lil. 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 applicant should be the basis for consideration for claim for compassionate appointment".Page 37 of 48 38 OA No.2034/2013
20(c). The application dated 07.02.2008, (Date of Death: 23.12.2006) the applicant has given details of family as below:
Name Relation with Govt. DOB servant Ahilya Wife 13.08.1955 Khobragade Shailesh Son 08.10.1976 Khobragade Nitin Son 26.05.1981 Khobragade Anup Son 19.06.1984 Khobragade 20(d). It is submitted that the case of the applicant was examined by the duly constituted Circle Relaxation Committee, Office of the Chief Postmaster General, Maharashtra Circle, Mumbai-400001 as per rules and orders on the subject. The appointment under compassionate ground are limited to 5% of the Direct Recruitment quota and it is given in an exceptional situation according to the availability of vacancies and in most deserving cases in which a Govt. Servant dies in harness leaving the family in indigent condition and deserves immediate assistance for relief from financial destitution. It is submitted that, the reply dated 04.03.2010 given by respondent no 3 is just & proper. All these cases Page 38 of 48 ment nT SM Eg eager 39 OA No.2034/2013 were considered and scrutinized by the Committee one by one. While considering the request for appointment on compassionate ground, the committee made balanced and objective assessment of the financial condition of the family taking into account assets and liabilities including benefits received under .the various welfare schemes, terminal benefits and all other relevant factors such as presence of earning member, size of the family, unmarried daughters, age of the children, service left at the time of death, essential needs of the family etc. This was done to assess the degree of indigence among all the applicants considered for compassionate appointment within the prescribed ceiling of 5% of the Direct Recruitment vacancies as prescribed by to the Directorate.
20(e). Committee has not recommended the case of the applicant on the ground that, "The deceased passed away at the age of 52 years in the year 2006, terminal benefits of Rs.7,16,317 was paid to the family which included widow & 3 sons i.e. applicant (33 yrs), another son (28 yrs) & youngest son (24 yrs). All the family members are major & living in their own house, the case is not found relatively in indigent condition as other severe indigent cases available for limited vacancies available Coad Page 39 of 48 40 OA No.2034/2013 under relaxation quota". Details of the terminal benefits paid, family condition already envisaged ibid. As such the family of the applicant was not found relatively in indigent condition, hence his case was rejected, Moreover, the Office Memorandum dated git July 2021 related to _,National Informatics Centre department. Hence OM does not applicable to the case of the applicant as the case of the applicant is decided as per DOPT guidelines issued from time to time.
20(f), it is further submitted that the case of the applicant was examined by the duly constituted Circle Relaxation Committee, Office of the Chief Postmaster Gerieral, Maharashtra Circle, Mumbai-400001 as per rules and orders on the subject. The appointment under compassionate ground are limited to 5% of the Direct Recruitment quota and it is given in an exceptional situation according to the availability of vacancies and in most deserving cases in which a Government Servant dies on harness leaving the family in indigent condition and deserves immediate assistance for relief from financial destitution. It is submitted that, the reply dated 4.3.2010 given by respondent no 3 is just & proper.
Page 40 of 48 41 OA No.2034/201320(g). All these cases were considered and scrutinized by the Committee one by one. While considering the request for appointment on compassionate ground, the committee made balanced and objective assessment of the financial condition of the family taking into account assets and liabilities including benefits received under the various welfare schemes, terminal benefits and all other relevant factors such presence of earning member, size of the family, unmarried daughters, age of the children, service left at the time of death, essential needs of the family etc. This was done to assess the degree of indigence among all the applicants considered for compassionate appointment within the prescribed ceiling of 5% of the Direct Recruitment vacancies as prescribed by to the Directorate.
20(h). Terminal benefits received by the family are Rs.7,16,317/- and Family pension of Rs.7,449/- (Rs.5212/- + Rs.DA 2237/-) is correctly taken in to account. Committee has not recommended the case of the applicant for the ground that,"the deceased passed away at the age of 52 years in the year 2006, terminal benefits of Rs.7,16,317 was paid to the family which included widow & 3 sons i.e. applicant (33 yrs}, another a Page 41 of 48 42 OA No.2034/2013 son (28 yrs) & youngest son (24 yrs). All the family members are major & living in their own house, the case is not found relatively in indigent condition as other severe indigent cases available for limited vacancies available under relaxation quota". Details of the terminal benefits paid, family condition already envisaged ibid. As such the family of the. applicant was not found relatively in indigent condition, hence his case was rejected.
20{i). The case was considered and decided in the Circle Relaxation Committee meeting held Of 06.07.2009 to 10.07.2009. The Office Memorandum dated 01.07.2022 related to Department of Telecommunications. Hence OM does not applicable to the case of the applicant as the case of the applicant is decided as per DOPT guidelines issued from time to time. The case was considered and decided in the Circle Relaxation Committee meeting heid on 06.07.2009 to 10.07.2009. It is submitted that the say of applicant is not acceptable. Applicant's case regarding appointment on compassionate ground was as per various DOPT guidelines issued from time to time. It is submitted that, the reply dated 04.03.2010 given by respondent No.3 is just & proper, Page 42 of 48 43 OA No.2034/2013 All these cases were considered and scrutinized by the Committee one by one. While considering the request for appointment on compassionate ground, the committee made balanced and objective assessment of the financial condition of the family taking into account assets and liabilities including..benefits received under the various welfare schemes, terminal benefits and all other relevant factors such as presence of earning member, size of the family, unmarried daughters, age of the children, service left at the time of death, essential needs of the family etc. This was done to assess the degree of indigence among all the applicants considered for compassionate appointment within the prescribed ceiling of 5% of the Direct Recruitment vacancies as prescribed by to the Directorate.
20(j). Committee has not recommended the case of the applicant for the ground that, "the deceased passed away at the age of 52 years in the year 2006, terminal benefit of Rs.7,16,317 was paid to the family included widow & 3 sons ie. applicant (33 yrs), another son (28 yrs) & youngest son (24 yrs), all-the family members are major & living in their own house, the case is not found relatively in indigent condition as other we Page 43 of 48 44 OA No.2034/2013 severe indigent cases available for limited vacancies available under relaxation quota". Details of the terminal benefits paid, family condition already envisaged ibid.
20{k). Moreover, the Office Memorandum dated 3'" July 2021 does not apply to the case of the applicant as the case of the applicant is decided.» ~"-
in the various DOPT guidelines issued from time to time. All these cases were considered and scrutinized by the Committee one by one. While considering the request for appointment on compassionate ground, the committee made balanced and objective assessment of the financial condition of the family taking into''account assets and liabilities including benefits received under the various welfare schemes, terminal benefits and all other relevant factors such as presence of earning member, size of the family, unmarried daughters, age of the children, service left at the time of death, essential needs of the family etc. This was done to assess the degree of indigence among all the applicants considered for compassionate appointment within the prescribed ceiling of 5% of the Direct Recruitment vacancies as prescribed by to the Directorate.
_ Page 44 of 48 45 OA No.2034/201320(l). it is submitted that the say of applicant is not acceptable. Applicant case regarding appointment on compassionate ground was considered on the basis of various guidelines issued by DOPT from time to time up to the date of CRC. it is submitted that, the reply dated 04.03.2010 given by respondent. ne.3-is just & proper. All these cases were considered and scrutinized by the Committee one by one. While considering the request for appointment on compassionate ground, the committee made balanced and objective assessment of the financial :, condition of the family taking into account assets and liabilities including
- benefits received under the various welfare schemes, terminal 'benefits _and all other relevant factors such as presence of earning member, size of the family, unmarried daughters, age of the children, service left at
- the time of death, essential needs of the family etc. This was done to assess the degree of indigence among all the applicants considered for compassionate appointment within the prescribed ceiling of 5% of the Direct Recruitment vacancies as prescribed by to the Directorate.
20(m). Committee has not recommended the case of the applicant on | the ground that, "the deceased passed away at the age of 52 years in = Page 45 of 48 46 OA No.2034/2013 the year 2006, terminal benefit of Rs.7,16,317 was paid to the family which included widow & 3 sons i.e. applicant (33 yrs), another son (28 yrs) and youngest son(24 yrs). All the family members are major & living in their own house, the case is not found relatively in indigent condition as other severe indigent cases available for limited vacancies available under relaxation quota. Details of the terminal benefits paid, family condition already envisaged ibid. Moreover, the Office Memorandum dated 28.02.2022 related to Ministry of Information and Broadcasting. Hence, OM does not applicable to the case of the applicant as the case of the applicant is decided in the various instructions issued time to time on the subject by the Postal Directorate till the date of CRC meeting.
21. The learned counsel for the applicant states that the citations cited by the learned counsel for the respondents are not relevant in this . . Case as the respondents have solely considered the terminal benefits paid to the deceased employee while deciding his case for compassionate appointment. Therefore, only on above mentioned ground, the case was not considered despite there being 25 vacancies.
He further states that the sanction of terminal dues could not be the Page 46 of 48 47 OA No.2034/2013 factor to deny compassionate appointment. It is seen that the respondents did not consider the case of applicant on the ground that his condition was not found reiatively indigent. It would be appropriate to quote para 4 of the impugned order dated 04" March, 2010 which reads as follows:- Fag "4. The committee has not recommended your case for appointment on compassionate basis on the following grounds:
. " The Ex-official passed away in 2006 at the age of 52 years. Terminal benefit of Rs. 7,16,317/- was paid. Family pension @ Rs. 5212/- p.m. pre-revised (now revised w.e.f. 01-01-2006) is being paid. Family include widow, son 33 applicant, another son 28 (12 passed), youngest son 24. All are major. Family has own house worth Rs. 2 lakhs. The case is not found relatively in indigent condition as other severe indigent cases available for limited vacancies available under relaxation quota."
22. ina number of judgements quoted above (supra), it has been well accepted that the retiral benefits given to the deceased employee cannot be a good ground for-rejection of claim of compassionate appointment. The appointment on compassionate ground should be provided to the dependant of the deceased employee immediately after the death of the bread winner to enable the family to tide over the sudden crisis, Page 47 of 48 48 OA No.2034/2013
23. In view of the above position and aiso in view of removal of restriction for consideration of compassionate appointment and various judicial pronouncements cited above (supra}, the claim of applicant should be reconsidered vis-a-vis other applicant for compassionate appointment. Accordingly, the respondents are directed to consider the case of compassionate appointment in the next meeting of Circle Relaxation Committee strictly as per rules, if the applicant is found eligible vis-a-vis the other candidates, he may be given appointment on compassionate ground.
23.(a)_ Accordingly, the OA is allowed and respondent nos. 2 and 3 are directed to consider the case of the applicant for compassionate appointment as per rules and guidelines on the subject along with other eligible candidates in the next Circle Relaxation Committee Meeting..
Pending MAs, if any, stand closed. No costs.
(Rajinder Kashyap) Member (A) kmg*/nk Ty yak! Page 48 of 48