Central Administrative Tribunal - Allahabad
Mahendra Singh Yadav vs M/O Defence on 27 May, 2020
SSS SSS
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This, day of ages? 2020
HON'BLE MR, RAKESH SAGAR JAIN. MEMBER -- J
Original Application No. 330/00100/2017
e Niranjan Singh Yadav,
(U.P.]
Mahendra Singh Yadav, A/a 28 years, S/o Lat
R/o Nagaria Parikshif, Air Force Gate, zat Nagar, Bareilly
... Applicant
By Advocate: Shri M. D. Waseem,
Versus
1. Union of India through its Secretary (Defence) Secretariat. New Delhi.
Air Force Commanding-in-Chief Control Air Command, Allohabad.
Air Officer, Commanding Air Force Station, Bareilly.
C.G.0.{A}, HQ Central Air Command, IAF Bamrauli, Allahabad -12.
Respondents
B WN
eeeeereee
By Advocate: Shri D. C. Mishra
ORDER
1. The present O.A. has been filed by the applicant Mahendra Singh Yadav seeking direction to the respondents to appoint the petitioner on compassionate grounds. As per the applicant, his father Shri Niranjan Singh Yadav died on 17.11.2006 while serving in the respondent-department. That his mother filed an application dated 21.05.2007 seeking compassicnate appointment for the applicant. That applicant joined as casual labour as LASCAR Le. NC (E) in November 2007. Buring this period he worked at different stations in various capacities. However, the respondents by way of impugned order dated 01.07.2016 (Annexure A-4) rejected his application for appointment on compassionate grounds.
2. Applicant has challenged the impugned order on the groun d that the application was to be considered by the respondenis as pet the Dying and Harness Rules but the respondents in G iNegal manner considered his case as per ihe merit points, as such, fhe impugned deserves fo be set aside.
tn the counter affidavit filed by the respondents, if has been averred that the merit of fhe cases are assessed in ferms of orders dated 22.01.2010 and 14.05.2010 and therefore, fhe order impugned in the O.A. is in accordance with rules and regulations and O.A. being meritless deserves to be dismissed.
_ [have heard and considered the arguments of learned counsel for ihe parties and gone through the material on record.
_ {tis settled law that the claim for compassionate appointment is to be settled as per the scheme/rules existing at the time of the death of the father of claimant.
_ In the case of Canara Bank Vs. M. Mahesh Kumar, (2015) 7 SCC 412, while laying down that the claim of petitioner for compassionate appointment is to be considered in accordance with law and as per scheme then in existence ai the time of death of father of petitioner, Hon'ble Apex Court observed that:
"During the pendency of the matter before the Division Bench, Indian Banks Association (for short 'IBA') formulated a scheme based on the guidelines issued by the Government of India. As per the said Scheme, the banks have scrapped the scheme of compassionate appointment and introduced the new scheme of ex-gratia payment in fieu of compassionate appoinfment by H.O. Circular No.35/2005 dated 14.02.2005. According to appeilant-Bank, as on date of consideration of the application for compassionate appointment, there wos no policy to provide compassionate appciniment under 'Dying In Harness Scheme'. If is therefore the contention of the bank thaf the new scheme of 2005 applies to all pending applications for appointment on compassionate ground, respondent's case could not be considered and as per the new Scheme, they are only entitled to ex-gratia payment in lieu of compassionate appointment.
11, The main question falling for consideration is whether the Scheme passed in 2005 providing for ex-gratia payment or the Scheme then in ELE EEELEL EEE.
vogue in 1993 providing for compassionate appoiniment is applicable to fhe respondent. Appeliant-bank has placed reliance upon the judgment of this Court in Jaspal Kaur's case (supra) to contend that the respondent's case cannot be considered on the basis of 'Dying in Harness Scheme 1993' when the new Scheme of 2005 providing for ex-gratia payment had been put in place. in Jaspal Kaur's case (supra), Sukhbir Inder Singh employee of State Bank of India, Record Assistant (Cash & Accounts) passed away on 1,08.1999. Widow of fhe employee applied for compassionate appointment in State Bank of India on 5.02.2000. On 7.01.2002, fhe compefent authorily of the bank rejected the application of Jaspal Kaur in view of the Scheme vis-a-vis the financial position of the family. Against that decision of fhe competent authority, the respondent filed writ pefition before the Punjab and Haryana High Court which has direcfed to consider the case of Jaspal Kaur by applying the Scheme formulated on 4.08,2005 when her application was made in the year 2000. In that factual matrix, this Court has directed that dispute arising in fhe year 2000 cannot be decided on the basis of a Scheme that was put in place much after the dispute. By perusal of the judgment in Jaspal Kaur's case, it is apparent that the judgment specifically stafes that claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came info force much after the claim.
12. The same principle was reiterated by this Court in the case of Bhawani Prasad Sonkar vs. Union of India & Ors.. (2011) 4 SCC 209, wherein it was held as under:
"15. Now, if is well settled thal compassionate employment is given solely on humanitarian grounds with fhe sole object fo provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be sfrictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of fhe Constitution of india. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognised as an exception fo the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, if needs lifte emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only fo the purpose if seeks fo achieve.
17. in Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138, while emphasising that a compassionate appointment cannot be claimed as a matter of course or in posts above Classes Ill and IV, this Court had observed that: (SCC p. 140, para 2) "2. ...The whole object of granting compassionate employment is thus to enable the family fo tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entifle his family to such source of livelihood. The Government or the public authorify concerned has fo examine the financial condition of the farnily of the deceased, and if is only if if is _ satisfied, that but for the provision of employment, the family will not _be able to meet the crisis that a job is fo be offered to the eligible n Classes {il and !V are the lowest posts In non-manual and manual categotles and hence they alone can be offered on compassionate grounds, the object being to relleve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception fo the rule is justifiable and valid since it is not discriminatory. The favourable treatment given fo such dependant of fhe deceased employee in such posts has a rational nexus with fhe object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. If must be remembered in this connection that as against the destitute family of the deceased there are millions of ofher families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee Is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."
20. Thus, while considering a claim for employmenf on compassionate ground, the following factors have to be borne in mind:
(i) Compassionate employment cannot be made in fhe absence of rules or requiations issued by fhe Government er a public authority.
The request is to be considered strictly in accordance with the governing scheme, and no discretion as such Is left with any authority to_ make compassionate appointment dehors the scheme. (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (ii) An appointment on compassionate ground is to meet the sudden crisis occurring In the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse Irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be. (iv) Compassionate employment is permissible only fo one ef fhe dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only fo the lowest category that is Class ll and IV posts." (Underlining added)
13. Applying these principles fo the case in hand, as discussed earlier, respondent's father died on 10.10.1998 while he was serving as a clerk in the appellani-bank and the respondent applied timely for compassionate appointment as per the scheme 'Dying in Harness Scheme' dated 8.05.1993 which was in force af that fime. The appellant-bank rejected the respondent's claim on 30.06.1999 recording that there are no indigent circumstances for providing employment to the respondent. Again on 7.11.2001, the appellant- bank sought for particulars in connection with the issue of respondent's employment. In the light of the principles laid down in the above decisions, the cause of action fo be considered for compassionafe appointment arose when the Circular No.154/1993 dajed 8.05.1993 was in force. Thus, as per fhe judgment referred in Jaspal Kaur's case, the claim cannot be decided as per 2005 Scheme providing for ex-grafia payment. The Circular dated 14.2.2005 being an administrative or executive order cannot have retrospective effect $0 as to fake away the right accrued fo the respondent as per circular pertinent to note that 2005 Scheme providing only for ex-
er dieu of compassionate appointment stands @. Scheme of 2014 which has revived fhe scheme compassionate appointment, As on dafe, now the scheme in force is to provide compassionate appointment. Under these circumstances, the appellant-bank is not justified in contending that fhe application for compassionafe appointment of the respondent cannof be considered in view of passage of time."
7. The law is settled that a claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that comes info force much afler the claim. In the present case, Niranian Singh Yadav father of applicant expired on 17.11.2004 and therefore, it is the Scheme which existed in 2006 ie. the year, the father of applicant expired is to apply to the case of compassionate appoiniment of applicant. in the present case perusal of the impugned order dated 01.07.2016 {Annexure No. 6) and the counter affidavit reveals that the respondents while rejecting the case of fhe applicant considered his application on the basis of schemes/rules/merit points which were not in force in the year 2006.
8. Therefore, it is clear that on 17.11.2006 when the father of applicant expired the merit points on which the case of applicant was considered and rejected by the respondents were not in existence fut which came into existence in the year 2010. However, the respondents have not applied the scheme existing on 17.11.2006. Therefore, the impugned order dated 01.07.2016 (Annexure No.6) is quashed on the sole ground that the respondents took into consideration the scheme which came into existence after 2006 which is impermissible under law and set aside. Accordingly, the case is remitted back to the respondents to reconsider the case of applicant for appointment on compassionate grounds on the basis of the scheme existing as on ». 17.41.2006 and decide the matter by passing a reasoned and g order within a period of 08 months from the date of receipt of a certified copy of the order with intimation to the O.A. is disposed of. No order as to costs.
applicants. Accordingly, (RAKE ey) eA eS > SS ENG Member (J) {Shashi/