Central Administrative Tribunal - Ernakulam
Arjun Mohan vs The Union Of India on 5 August, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO. 180/00336 of 2015
Friday this the 5th day of August, 2016
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
Arjun Mohan,
Accounant, Office of Principal Accountant General,
(Accounts & Entitlement), Thiruvananthapuram,
residing at Sandram, C3, Sbhash Lane,
Netaji Road, Thoppumukku,
Vattiyoorkavu, Thiruvananthapuram-13.
. . .Applicant
(By Senior Advocate Mr.M.K.Damodaran with Advocates Mr.Gilbert George
Correya, Mr.Vimal J and Mr. PS Nishil)
Versus
1. The Union of India, represented by the Secretary
to Government, Ministry of Personnel, Public Grievances
and Pensions, (Department of Personnel & Training)
North Block, New Delhi-110 001.
2 The Principal Accountant General (A&E),
Kerala, Thiruvananthapuram.1.
3 The Deputy Accountant General (Admn)
Office of the Principal Accountant General (A&E)
Kerala, Thiruvananthpuram.1.
4 Mr.T.Karunakaran, Deputy Accountant General (Admn)
Office of the Principal Accountant General (A&E)
Kerala, Thiruvananthpuram.1.
5 The Comptroller & Auditor General of India,
9, Deendayal Upadhyaya Marg, New Delhi-110 124.
6 The Deputy Comptroller & Auditor General of India,
9, Deendayal Upadhyaya Marg, New Delhi-110 124.
. . . Respondents
(By Senior Advocate Mr.V.V. Asokan with Advocate Mr. K.I.Mayankutty
Mather (for R 1 to 3) and Advocate Mr. Vineeth Komalachandran for R4)
This application having been finally heard on 25.07.2016, the Tribunal on
05.08.2016 delivered the following:
ORDER
Per: Justice N.K. Balakrishnan, Judicial Member Annexure A2 dated 27.4.2015, the order of termination from service issued under the proviso to Sub Rule 1 of Rule 5 of CCS (Temporary Service) Rules, 1965 passed against the applicant is under challenge in this OA. As per Annexure A9 appointment order dated 19.1.2015 the applicant was appointed to the temporary post of Accountant on compassionate ground in PB-1 of Rs. 5200-20200 with GP of Rs. 2800/-.
2. The gist of the case pleaded by the applicant is stated as under:
The applicant was appointed on compassionate grounds as Accountant in the Office of the Accountant General, Kerala as per Annexure A1 order dated 19.1.2015.. He was on probation for a period of two years from 19.1.2015. He did not violate any of the terms and conditions of his appointment or the service rules applicable to him. All on a sudden Annexure A2 order dated 27.4.2015 was issued terminating the applicant from service and accordingly he was pushed out of service. An appointee on compassionate ground can be terminated by the Secretary concerned of the administrative machinery/department and not by the appointing authority. Such a termination can be only for violation of any of the terms and conditions of the appointment order. Annexure A2 order was passed by the appointing authority under the provisions of CCS (Temporary Service) Rules, 1965 (CCS (TS) Rules for short). That rule is not applicable to the facts of this case. The action of the third respondent is vitiated by malafides, arbitrariness and in violation of Annexures A3 and A4 Office Memoranda issued by Government of India. Besides there was violation of the principles of natural justice as well. Annexure A2 order is per se illegal. Hence the applicant has approached this Tribunal for a prayer to set aside Annexure A2 order and to reinstate the applicant to service with all consequential benefits.
3. The respondents resisted the claim made by the applicant by filing the reply statement, the gist of which is stated as under;
Following the guidelines issued by the DOP&T certain parameters were prescribed in the scheme of compassionate appointment in the office of the 5th respondent. Circulars dated 19.2.2003, 9.1.2006, 9.3.2009 and 9.2.2012 were issued with regard to the appointment on compassionate grounds. Right to compassionate appointment is not a fundamental right nor a legal right. The object of compassionate appointment is only to provide immediate financial assistance to the family which had lost its bread winner. In the case of the applicant, it was noted that the deceased employee had no liability; the terminal benefits amounting to Rs. 15.96 lakhs was disbursed to the family consisting the applicant and his brother and thus the applicant's share was Rs. 7.98 lakhs. The applicant has an ancestral house; besides his elder brother is a doctor by profession. While perusing the records leading to the appointment of the applicant, it was noticed that the instructions on the point were not followed and as such it was found that the appointment of the applicant was illegal and void ab initio. Acordingly the competent authority issued Annexure A2 the termination order. If the total income including the family pension and earning from terminal benefits exceeds a certain amount, the benefit for appointment on compassionate ground cannot be considered. The applicant does not satisfy the main parameters essential for being considered for appointment on compassionate grounds. The fact that there is another earning member in his family and the further fact that the approval of the competent authority (Deputy Comptroller and Auditor General of India) was not obtained prior to appointment were omitted to be considered while issuing the order of appointment. The applicant's mother died on 4.3.2014 when only eight months and few days was left for her retirement. Her date of retirement was 30.11.2014. In Annexure A1 itself it was specifically stated that the appointment of the applicant on compassionate grounds was purely temporary and will be governed by the CCS (Temporary Service) Rules, 1965. The contention that the aforesaid rule is not applicable is denied by the respondents. The competent authority reviewed the compassionate appointment made and thus issued A2 order terminating the service of the applicant for non compliance of orders regarding the scheme for compassionate appointment. Order of termination was issued since the competent authority found that the guidelines for compassionate appointment had not been followed. Annexure A2 order was not issued with malafides nor to wreak vengeance as alleged by the applicant. When the appointments are made in violation of the rules such appointment cannot be treated as regular. Hence the respondents prayed for dismissal of the OA.
4. The 4th respondent has specifically contended that he was unnecessarily impleaded in this case, since he as the Deputy Accountant General (Admn) is arrayed as the third respondent.
5. A Rejoinder has been filed by the applicant refuting the contentions raised in the reply statement. It is contended that the plea raised by the 4th respondent that there was no malafides, abuse of power or lack of authority is denied. Since the applicant has not violated the procedure for compassionate appointment and since he had not misled the officials or suppressed information and as the appointment was not obtained by fraud, the order of appointment given to him is not ab initio void as contended by the respondents. As such the termination order (Annexure A2) terminating the service of the applicant without giving notice and without hearing the applicant cannot be sustained. Reasons which are not mentioned in the impugned order cannot be supplemented by adding fresh reasons in the form of affidavit. The other son of the the deceased employee is married and he has his own family. The property with the house stands in the name of the parents of the applicant.
6. An additional reply statement has been filed by Respondents 1 to 3 reiterating almost all the contentions raised earlier in the reply. Another reply statement is seen filed by the respondents 1 to 3, 5 and 6. In this reply also the averments raised in the reply statement are reiterated and the averments in the rejoinder are seen countered.
7. The point for consideration is whether Annexure A9 the direction given by the Director General (Staff) dated 21.4.2015 as per which the third respondent was directed to cancel the appointment of the applicant and the consequential Annexure A2 order are illegal and liable to be set aside and whether the applicant is entitled to get consequential order of reinstatement in service?
8. We have heard the learned counsel for the parties and have also gone through the pleadings on record.
9. Admittedly the applicant's mother VB Aruna who was working in the office of Principal Accountant General (A&E) expired on 4.3.2014. The applicants father pre-deceased on 14.10.2009. It is not disputed that the deceased employee was to retire on superannuation on 30.11.2014. Therefore, the deceased had only eight months and 26 days left for retirement on superannuation.
10. Annexure A1 is the order of appointment on compassionate ground dated 19.1.2015 issued in favour of the applicant, as per which the applicant was appointed to the temporary post of Accountant on compassionate grounds in PB 1 of Rs. 5200-20200 with GP of Rs. 2800/- w.e.f. 19.1.2015 specifying therein that his appointment will be governed by the terms and conditions mentioned therein which were accepted by the applicant while responding to the offer of appointment. Annexure A2 is the impugned order of termination from service issued by the Principal AG (A&E) Kerala, Trivandrum. The order of termination from service was issued by the appointing authority himself as can be seen from Annexure A2.
11. It is vehemently argued by the learned senior counsel appearing for the applicant that the applicant has submitted all the papers required for considering his appointment on compassionate scheme and there was no suppression of material facts nor was any fraud committed by the applicant in order to secure employment under the scheme. Annexure R2(d) is the proforma filled up and submitted by the applicant for getting appointment on compassionate grounds. The learned senior counsel would submit that there is no dispute regarding the fact that the entries made or the information furnished by the applicant as per Annexure R.2(d) are correct. The fact that his elder brother Aswin Mohan was a doctor by profession was specifically noted in Annexure R.2(d). It was also mentioned that Shri Aswin Mohan is married and is living separately. Since Aswin Mohan was living separately and was not staying in the parental house of the applicant (family house) the contention that there was an earning member; namely the elder brother of applicant and his income was not considered while granting Annexure A1 appointment order cannot be sustained, it is further argued. The further fact that the applicant had also furnished the details of the amount obtained as retiral benefits consequent on the death of his mother was also not suppressed. It cannot be said that there was suppression of fact by the applicant as regards the retiral benefits obtained by him. The respondents contended that the total amount obtained by the applicant and his elder brother towards retiral benefits is Rs. 15.96 lakhs and so the applicant herein itself got Rs. 7.98 lakhs. The respondents would further contend that the applicant has got a residential building in ten cents of land and so that factor also cannot be ignored while considering the entitlement for appointment under compassionate scheme.
12. The main ground that has been argued by the learned Senior counsel for the applicant challenging Annexure A2 the termination order, is that it was issued without following the procedure prescribed for that purpose. That contention has been countered by the learned Senior counsel appearing for the respondents pointing out that even the offer of appointment given to the applicant was only on temporary basis. In fact it was specifically stated that his appointment is on a temporary post of Accountant. It was repeatedly mentioned in Annexure A1 that his appointment is purely temporary and is governed by the CCS (TS) Rules 1965. It was further stated that on satisfactory completion of the probation, he will be eligible for confirmation in the Accountant Cadre and after completing the requisite length of service, he will be eligible for further promotion. The main thrust of the argument advanced by the Senior counsel for the applicant is that though the CCS (TS) Rules was mentioned in Annexure A1, that is no reason for the competent authority to issue order of termination without following the procedure prescribed under the relevant scheme.
13. Annexure A4 is the office memorandum dated 16.1.2013 as per which the new scheme of compassionate appointment was introduced. Since Annexure A1 order was issued subsequent to Annexure A4 the provisions contained in that scheme have to be scrupulously followed, the applicant contends. It is submitted by the learned Senior counsel for the applicant that since the issue involved is regarding the illegal termination (Annexure A2) issued by the third respondent, the question whether the procedure contemplated under the CCS (TS) Rules, 1965 is followed or not do not arise for consideration at all.
14. It is submitted by the learned Senior counsel appearing for the respondents that when it is brought to the notice of the appointing authority that certain vital aspects were omitted to be considered by the authority concerned while considering and issuing order of appointment, it does not deter the competent authority to cancel the appointment. Since the appointment was only temporary governed by the provisions of the CCS (TS) Rules, 1965 the procedure prescribed under that rule alone need be followed by the competent authority to terminate the service of the employee. In this connection, learned Senior counsel for the respondents would also draw our attention to the CCS (TS) Rules, 1965. According to the leaned Senior counsel Rule 5 therein is relevant for the purpose of this case. Rule 5 reads:
'5. Termination of temporary service.
(1) (a) The services of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant;
(b) the period of such notice shall be one month.
Provided that the services of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be, for the period by which such notice falls short of one month.
NOTE:- The following procedure shall be adopted by the appointing authority while serving notice on such Government servant under clause (a).
(i) The notice shall be delivered or tendered to the Government servant in person.
(ii) Where personal service is not practicable, the notice shall be served on such Government servant by registered post, acknowledgement due at the address of the Government servant available with the appointing authority.
(iii) If the notice sent by registered post is returned unserved it shall be published in the Official Gazette and upon such publication, it shall be deemed to have been personally served on such Government servant on the date it was published in the Official Gazette.
(Remaining part omitted as unnecessary) (2) (a) Where a notice is given by the appointing authority terminating the services of a temporary Government servant, or where the service of any such Government servant is terminated on the expiry of the period of such notice or forthwith the Central Government or any other authority specified by the Central Government in this behalf or a head of Department, if the said authority is subordinate to him, may, of its own motion or otherwise, reopen the case and after making such inquiry as it deems fit-
(i) confirm the action taken by the appointing
authority;
(ii) withdraw the notice;
(iii) reinstate the Government servant in service; or
(iv) make such other order in the case as it may consider proper.
Provided that except in special circumstances, which should be recorded in writing, no case shall be re-
opened under this sub-rule after the expiry of three months-
(i) from the date of notice, in a case where notice is given;
(ii) from the date of termination of service, in a case where no notice is given.
(b) Where a Government servant is reinstated in service under sub-rule (2) the order of reinstatement shall specify b�
(i) the amount or proportion of pay and allowances, if any, to be paid to the Government servant for the period of his absence between the date of termination of his services and the date of his reinstatement; and
(ii) whether the said period shall be treated as a period spent on duty for any specified purpose or purposes.' It is submitted that though one month's notice is required to be served on the employee, that can be dispensed with on payment of one month's salary in lieu of notice. Annexure A2 order specifies that the applicant shall be entitled to claim a sum equal to the amount of his pay plus allowances for the period of notice at the same rates at which he was drawing immediately before the termination of his service. There was no violation of the rules and the official memorandum issued by the government pertaining to the same. The Govt. of India decision on the point is as follows:
'(1) Rule 5 enables Government to dispense with the services of a temporary employee forthwith but does not provide for the forfeiture to Government of a similar amount when the employee does not give the requisite notice. The practice of obtaining an undertaking from temporary employees regarding forfeiture of pay and allowances should be discontinued where this has not already been done.
[MHA OM No. 78/105/55-TS dt. 22.12.55, read with Deptt. of Personnel & A.R. Notification . No. 4/2/72- Ests. (C) dt. 22.11.72.] (2) When action is taken as under Rule 5 to terminate the services of a temporary employee, the order of termination, which should be passed by the appointing authority, should not mention the reasons for such termination.
[MHA OM No.39/14/56-Estt.(A) dt. 22.6.56.]' Since Rule 5(1)(b) is clear on the point it is not even necessary to go through the government decision just mentioned above. Therefore, the respondents would contend that since Annexure A1 appointment order itself is clear on the point that his appointment was purely temporary and governed by CCS (TS) Rules, 1965 and since notice of one month required under Rule 5(1)(b) can be dispensed with on payment of one month's pay and allowances in lieu of the notice period, there was no infraction of any rule whatsoever and as such this OA has to be thrown over board. But the learned Senior counsel appearing for the applicant would submit that the provision of CCS (TS) Rules, cannot be resorted to in this case since Annexure A4 scheme is a self contained scheme which itself provides the rule relating to the termination of service.
15. The learned Senior counsel appearing for the applicant pressed into service Annexures A3 and A4 to contend for the position that the power granted to the authority to terminate the service as per the scheme should not be misused. Annexure A3 OM dated 24.11.2000 issued by the DOP&T says that compassionate appointees can be terminated on the ground of non-compliance of any condition stated in the offer of appointment after providing an opportunity to the compassionate appointee by way of issue of show cause notice asking him/her to explain why his/her services should not be terminated for non-compliance of the conditions(s) in the offer of appointment and it is not necessary to follow the procedure prescribed in the Disciplinary Rules/Temporary Services Rules for this purpose. It was further stated that in order to check its misuse it was decided that this power of termination of service for non compliance of the condition(s) in the offer of compassionate appointment should vest only with the Secretary in the concerned administrative Ministry/Department not only in respect of persons working in the Ministry/Department proper but also in respect of Attached/Subordinate offices under that Ministry/Department. Clause 17 of Annexure A4 scheme which deals with the termination of service says:
' The compassionate appointments can be terminated on the ground of non-compliance of any condition stated in the offer of appointment after providing an opportunity to the compassionate appointee by way of issue of show cause notice asking him/her to explain why his/her services should not be terminated for non-compliance of the conditions(s) in the offer of appointment and it is not necessary to follow the procedure prescribed in the Disciplinary Rules/Temporary Services Rules for this purpose.' In fact it is para 17 of Annexure A4 that is seen incorporated in Annexure A3 just referred to above. Since Annexure A4 is a self contained scheme which itself provides for termination of service of compassionate appointees, the respondents are not justified in banking upon CCS (TS) Rules. CCS (TS) Rules is the rule in general applicable to all categories of temporary services but it cannot be made applicable to a compassionate appointee in view of the special provision in Annexure A4 Scheme. When there is a special provision, general provisions pertaining to the same cannot be resorted to. Going by that principle the contention vehemently advanced by the learned Senior counsel for the respondents that issuance of one month's notice required as per CCS (TS) Rules has been satisfied by granting one month's pay and allowance in lieu of that notice period is found to be unacceptable. That is not what is required under Annexure A4 scheme, particularly the afore-quoted clauses 17 of Annexure A4.
16. It is further submitted by the learned senior counsel appearing for the applicant that there is no case for the respondents that the applicant who is a compassionate appointee did not comply any of the conditions in the offer of appointment. In other words, it was not for non compliance of the terms or conditions of service that the order of termination was issued but on the ground that the appointment itself was bad for the reasons stated in Annexure A9 issued from the office of Comptroller and Auditor General of India.
17. Clause 18(c) of Annexure A4 also has been relied upon by the applicant to fortify the submission that an application for compassionate appointment cannot be rejected merely on the round that the family of the Government servant has received the benefits under the various welfare schemes. This contention has been projected by the applicant since one of the grounds for ordering termination of service, as can be seen from Annexure A9 is that the applicant and his brother had obtained a total sum of Rs. 15.96 lakhs out of which applicant has got Rs, 7.98 lakhs. In clause 18(c) of Annexure A4 it is also stated that an objective assessment of the financial conditions of the family has to be made taking into account its assets and liabilities (including the benefits received under the various welfare schemes mentioned above) and all other relevant factors such as the presence of an earning member, size of the family, ages of the children and the essential needs of the family etc.
18. Clause 11 of Annexure A4 also has been pressed into service by the applicant where it is stated that in deserving cases even where there is already an earning member in the family, a dependent family member may be considered for compassionate appointment with prior approval of the Secretary of the Department/Ministry concerned who, before approving such appointment, will satisfy himself that grant of compassionate appointment is justified having regard to number of dependents, assets and liabilities left by the Government servant, income of the earning member as also his liabilities including the fact that the earning member is residing with the family of the Government servant and whether he should not be a source of support to other members of the family.
19. Clause 11(b) of Annexure A4 Scheme reads:
'(b) In cases where any member of the family of the deceased or medically retired Government servant is already in employment and is not supporting the other members of the family of the Government servant, extreme caution has to be observed in ascertaining the economic distress of the members of the family of the Government servant so that the facility of appointment on compassionate ground is not circumvented and misused by putting forward the ground that the member of the family already employed is not supporting the family.' The learned Senior counsel for the applicant would submit that in the format [Annexure R2(d)] itself, it was specifically stated by the applicant that Dr.Aswin Mohan is his elder brother who is working at Muthoot Medical college, Pathanamthitta and that he is married and living separately and so there was no suppression of material facts. The applicant and his brother Dr.Aswin Mohan are the only legal heirs/dependents of the deceased. Since his elder brother was not residing along with the applicant the fact that his elder brother is an earning member cannot outweigh or negate the claim of the applicant for getting compassionate appointment, it is argued.
20. It is further submitted by the learned Senior counsel for the applicant that one of the grounds projected by the respondents is that no consent letter was obtained by the applicant from the other dependent Dr. Aswin Mohan. Since such a consent was not produced, the authority concerned should not have acted on Annexure R2(d) application submitted by the applicant. No doubt all these aspects were not considered by the authority while allowing compassionate appointment. Rather, it was done in a casual manner disregarding the mandatory requirements and a such Annexure A1 order suffers from the vice of illegality, voidity and unreasonableness, it is argued.
21. It was held by the Hon SC in Umesh Kumar Nagpal and another Vs. State of Haryana and others - (1994) 4 SCC 138 that only dependents of an employee who are in penury and without any means of livelihood can be appointed on compassionate grounds. It is further stated that Class III and IV are the lowest posts in non-manual/manual categories and hence they alone can be offered appointment on compassionate ground, the object being to relieve the family, of the financial destitution and to help it to get over the emergency and making appointments in posts above Class III and IV is legally impermissible. The applicant would contend that the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis and to relieve the family of the deceased from financial destitution and to help it to get over the emergency from penurious condition of the deceased family. Neither the qualification of his dependent nor his post is relevant. It is further observed in the very same judgment that such appointments should not be ordered to be made to the posts equivalent to the post held by the deceased employees and above Classes III and IV. If the dependent of the deceased employees finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity. The appointment on compassionate scheme is considered reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who dies while in service; but appointment on compassionate grounds cannot be claimed as a matter of right.
22. In Union of India and another Vs. Sashank Goswami and another b� (2012) 11 SCC 307, following the earlier Supreme Court decision on the point it was held by the Apex Court:
'As a rule public service appointment should be made strictly on the basis of open invitation of applications and 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 any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. Thus, applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.' It was further stated that the object being to enable the family from financial crisis which it faces at the time of the death of the sole bread winner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. It is pointed out that so far as the applicant's family is concerned there was no financial crisis at all for the reasons already stated and as such the order of appointment was found to be totally unjustifiable. It was held by the Apex Court in another case LIC of India Vs. Asha Ramachandra Ambedkar and another b� (1994) 2 SCC 718 that the court had come across instances in which appointment on compassionate ground is directed by judicial authorities. It was held that the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration.
23. It is also submitted by the learned Senior counsel for the respondents that where recruitment is regulated by statutory rules, it must be in accordance with the rules and if any appointment is made against the rules, the authority concerned has always the right to cancel it to avoid perpetuation of illegalities. Relying on the Apex Court decisions in University of Kashmir and others Vs. Dr.Mohd.Yasin and othersb� (1974) 3 SCC 546, State of Haryana Vs. Harayana Veterinary and AHTS Association and another b� (2000) 8 SCC 4 and Swapan Kumar Pal and others Vs. Samitabhar Chakraborty and others b� (2001) 5 SCC 581 it is argued that when appointments are made in violation of the Recruitment Rules, the said appointment cannot be treated to be regular. Here the appointments are made based on compassionate scheme. When there is a self contained scheme, which is as good as a rule, the appointment should be as per the rules. If the appointment is made in violation of the rules, then certainly it cannot be treated as legal or regular. Following the decisions just cited supra it was held by the Apex Court in Bhupendra Nath Hasarika V. State of Assam and others b� (2013) 2 SCC 516 as under:
'42. The aforesaid authorities clearly lay down the principle that when there is violation of the recruitment rules, the recruitment is unsustainable. Whether any active part is played by a selectee or not has nothing to do with the appointment made in contravention of the rules. In the case at hand, the special batch recruits have encroached into the quota of the direct recruits. The whole selection process is in violation of the rules and, therefore, we are inclined to concur with the opinion expressed by the learned single Judge that the selection was made de hors the rules. The Division Bench was not justified in stating that the selection could not be said to be de hors the rules. However, we accept the conclusion of the tribunal as well as the High Court that as there had been long delay in challenging the selection of the special batch recruits and some of them have already retired, it would not be apposite to annul their appointments'
24. Though the facts dealt with there are not identical, still the ratio enunciated in the said decision that when appointment is made in violation of the rules then such appointments cannot be treated as legal and so the appointing authority have every right to cancel such appointments is equally applicable to this case as well. Relying on the decision of Apex Court in Mumtaz Yunus Mulani Vs. State of Maharashtra b� (2008) 11 SCC 384 and Govindh Prakash Verma Vs. LIC (2005) 10 SCC 289 it was held in Sashank Goswami b� (2012) 11 SCC 307:
13: In Mumtaz YunusMulani (Smt.) v. State of Maharashtra & Ors., (2008) 11 SCC 384, this Court examined the scope of employment on compassionate ground in a similar scheme making the Dependant of an employee ineligible for the post in case the family receives terminal/ retiral benefits above the sealing limit and held that the judgment in Govind Prakash (supra) had been decided without considering earlier judgments which were binding on the Bench. The Court further held that the appointment has to be made considering the terms of the scheme and in case the scheme lays down a criterion that if the family of the deceased employee gets a particular amount as retiral/terminal benefits, dependent of the deceased employee would not be eligible for employment on compassionate grounds. (emphasis supplied by us) Relying on the above observation, it is vehemently argued by the learned Senior counsel for the respondents that since the applicant who is one of the two dependents has obtained Rs. 7.98 lakhs as retiral benefits consequent on the death of his mother, it can never be held that the family of the applicant was penurious or that he was having such a financial difficulty to tide over, for which appointment on compassionate ground was inevitable.
It is not a case where only nominal amount was obtained as retiral benefits but a very substantial amount; but those factors were not considered by the authority concerned while giving appointment on compassionate grounds.
25. Relying on the decision in Umarani Vs. Registrar Cooperative Societies and others - AIR 2004 SC 4504 it is argued by the learned Senior Counsel for the respondents that even the Supreme Court cannot exercise the extraordinary jurisdiction under Article 142 of the Constitution issuing a direction to give compassionate appointment in contravention of the provisions of the Scheme and rules etc. as the provisions had to be complied with mandatorily and any appointment given/to be given in violation of the scheme would be illegal. The aforesaid decision was followed by the Apex Court in MGB Gramin Bank Vs. Chakrawrti Singh - CA No. 6348 of 2013. It is also argued that if the applicant had no vested right to get compassionate appointment but the appointment was found to be illegal and without considering certain vital aspects, the authority concerned has every right to cancel the same.
26. Following the decision in Kuldip Singh Vs. Govt. NCT Delhi - AIR 2006 SC 2652 it was held in MGB Gramin Bank's case (supra):
'Thus, vested right is a right independent of any contingency and it cannot be taken away without consent without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/scheme could be changed.' The gravamen of the plea raised by the respondents is that the appointment on compassionate ground cannot be claimed as a matter of right nor is an applicant entitle to claim appointment automatically. It would depend on various other circumstances namely eligibility, financial condition of the family etc. The application has to be considered in accordance with the scheme. If the scheme does not create any legal right, a candidate cannot claim any right to get appointment.
27. It was also held by the Hon'ble Supreme Court in Chief Commissioner, Central Excise and Customs, Lucknow and others V.s Prabhat Singh - JT 2013 (1) SC 350 :
14. We are constrained to record that even compassionate appointments are regulated by norms. Where such norms have been laid down, the same have to be strictly followed. Where claims for appointment n compassionate ground, exceed, the available vacancies (which can be filled up by way of compassionate appointment), a selection process has to be adopted by the competent authority. The said process, necessarily has to be fair, and based on a comparative compassion gradient of eligible candidates, or on some such like criterion having a nexus to the object sought to be achieved. In other words, where there are two candidates but only one vacancy is available, there should be a clear, transparent and objective criterion to determine which of the two should be chosen. In the absence of a prescribed criteria, a fair selection process has to be,followed, so that, the exercise carried out in choosing one of the two candidates against a solitary available vacancy, can be shown to be based on reason, fair-play and non arbitrariness.
15. The very object of making provision for appointment on compassionate ground, is to provide succor to a family dependent on a government employee, who has unfortunately died in harness. On such death, the family suddenly finds itself in dire straits, on account of the absence of its sole bread winner. Delay in seeking such a claim, is an ante thesis, for the purpose for which compassionate appointment was conceived.
Delay in raising such a claim, is contradictory to the object sought to be achieved. The instant controversy reveals that even though Vijay Bahadur Singh, the father of the applicant (Prabhat Singh) seeking appointment on compassionate ground had died on 2.3.1996, Prabhat Singh sought judicial redress, for the first time, by approaching the CAT Allahabad Bench in 2005. By such time, there was no surviving right for appointment on compassionate ground under the OM dated 5.5.2003. As already noticed above, appointment on compassionate ground under the OM dated 5.5.2003 is permissible within three years of the death of the bread winner in harness. By now, sixteen years have passed by, and as such, there can be no surviving claim for compassionate appointment.
16. Courts and Tribunals should not fall prey to any sympathy syndrome, so as to issue directions for compassionate appointments, without reference to the prescribed norms. Courts are not supposed to carry Santa Clausb�s big bag on Christmas eve, to disburse the gift of compassionate appointment, to all those who seek a courtb�s intervention. Courts and Tribunals must understand, that every such act of sympathy, compassion and discretion, wherein directions are issued for appointment on compassionate ground, could deprive a really needy family requiring financial support, and thereby, push into penury a truly indigent, destitute and impoverish family. Discretion is therefore ruled out. So are, misplaced sympathy and compassion.' (emphasis supplied by us)
28. It is argued by the senior counsel for the respondents that considering the fact that the applicant had obtained a total sum of Rs. 7.98 lakhs as the retiral benefits consequent to the death of his mother and the further fact that he has got ten cents of land with a substantial residential house thereon, it can never be said that the family of the applicant was put to destitution or was in such a financial constraint in order to get appointment under the scheme. The authority concerned while giving compassionate appointment overlooked all those parameters but was simply carried away by the sympathy syndrome in granting appointment. The further fact that the deceased employee (mother of the applicant) had only a left out service of less than nine months was also omitted to be considered while granting appointment will make the position of the applicant pejorative, the respondents contend. When that was detected by the authority concerned and when it was also found that as per the scheme prior approval of the Dy.C&AG was required before making the appointment and since that was also not obtained, the whole action taken in granting appointment was found to be illegal. The Dy.Comptroller and Auditor General (Dy.C&AG) took serious view of that matter. Since the guidelines contained in Annexure A4 scheme were found to have been flouted with impunity, the appointment was ordered to be cancelled and accordingly as per Annexure A9, direction was issued to cancel the appointment. The contention raised by the applicant that Annexure A9 is illegal and unsustainable cannot be countenanced. Annexure A9 was only a direction to the third respondent. Third respondent was to follow the procedure for causing termination of service.
29. In this connection, the learned Senior counsel for the respondents would rely on the decision of the Hon'ble Supreme Court in Accountant General and another Vs. S.Doraiswamy and others - AIR 1981 SC 783 where it was held that the C&AG has the necessary competence to issue departmental instructions on matters of conditions of service on employees serving in his department in exercise of the power conferred by Article 309 of the Constitution of India. The decision cited supra was followed by the Apex Court in Union of India and another Vs. Amrik Singh and others - (1994) 1 SCC 269. Therefore, the contention that the C&AG has no competence to issue instructions like Annexure A9 for taking steps to cancel the appointment is found to be devoid of any merit. It was pursuant to Annexure R2(c) [Annexure A9] the impugned order Annexure A2 was issued.
30. So far as the case on hand is concerned, the applicant's brother was employed as a doctor but that fact was not considered at all. It is true that in the application/proforma submitted by the applicant, reference was made regarding the employment of applicant's brother. In other words that fact was not suppressed. But the authority did not examine the eligibility of the applicant to get appointment on compassionate grounds when his brother was employed as a doctor. Great care and caution ought to have been taken in ascertaining the alleged economic distress of the family so that the facility of grating appointment on compassionate ground should not be circumvented or misused putting forward the plea that the brother of applicant is not supporting the family. Simply because statement was made that his elder brother is married and employed and living separately, it should not have been simply accepted without making scrutiny or inquiry regarding the same. There is nothing to show that any such examination of that fact had been made by the authority. The further fact as to whether the applicant was in penurious condition because of the fact that he had obtained Rs. 7.98 lakhs being half of the terminal amount of retiral benefits of his mother, was never considered by the authority. No consent letter of the dependent was produced by the applicant. These facts should not have been overlooked at all by the officer concerned. When the whole objective of granting appointment on compassionate ground is intended to tide over the sudden crisis and to relieve the family of the deceased from financial destitution and get over the emergency, those aspects were not available in the case on hand, but the officer who sanctioned the appointment was simply carried away by the sympathy syndrome as observed by the Hon'ble Supreme Court in the decision cited supra.
31. The learned Senior counsel for the applicant would rely upon the decision of the Hon'ble Supreme Court in Govind Prakash Verma Vs. LIC of India b� (2005) 10 SCC 289 where it was held:
'In our view, it was wholly irrelevant of the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount according to the appellant, has now been reduced to half) and other amounts paid on account of terminal benefits under the rules. The scheme of compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased employee as benefits of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules.....' This decision is not applicable to the facts of this case at all, the learned Senior counsel for the respondents contends. Since the compassionate appointment in this case is governed by the scheme (Annexure A4), what are the conditions or pre-requisites for appointment on compassionate grounds is to be decided as mentioned in the Scheme - Annexure A4. The other decisions on the point which were cited supra would also support the contentions advanced by the respondents that the amount obtained towards retiral benefits and other aspects should be considered by the authority.
The other decisions on the point which were referred to earlier still holds the field, the learned Senior counsel for respondents submits. It is also contended by the learned Senior counsel for the respondents that what was the service left behind by the deceased also is an important aspect to be considered while granting appointment, since if only a few months (less than nine months) remained for the applicant's mother's retirement on superannuation, the dependent cannot claim appointment on compassionate scheme since even otherwise the deceased would have got superannuated within a few months. In such cases the contention that there was a sudden death and thereby the family was/is put in such financial constraints cannot be pressed into service at all.
32. It is also pertinent to note that admittedly no consent letter of the elder brother of the applicant was produced at the time of inquiry or consideration of the request for compassionate appointment submitted by the applicant. The contention that since his elder brother is employed as a doctor in a nursing home, there could be no objection at all on his part in the younger brother getting employment is not something which can be simply assumed or accepted since the rule requires the consent letter of other dependents of the deceased. Right to get compassionate appointment is not a legal right as has been held by the Hon'ble Supreme Court in Bhavani Prasad Sonkar Vs. Union of India and others b� (2011) 4 SCC 209 and Santhoh Kumar Dubey Vs. State of UP and others b� (2009) 6 SCC 481. As has been repeatedly said the scheme is only to provide immediate financial assistance to families which lost its bread winner. Compassionate appointment is not a bonanza or another scheme of recruitment and it cannot be claimed as a matter of right.
33. In this context it is also argued by the learned Senior counsel for the respondents that the C&AG of India as per HQ Circular No. NE/11/2003 dated 19.2.2003 explained/clarified the position as follows:
'With a view to bring uniformity in our offices regarding parameters for compassionate appointment of family member in the case of death of a government servant in harness, it is has been decided that the total income of the family from all sources including terminal benefits after death, excluding GPF should be taken into account. If the resultant computation woks out to a figure less than the parameter given below such cases can be considered for compassionate appointment subject to fulfillment of all other conditions. Monetary criteria had been fixed for compassionate appointment to various cadres based on the total income of the family from all sources including terminal benefits, excluding GPF. The limits prescribed are as follows:
Group B b� Rs. Five Lakh Group C b� Rs. Three lakh Group D b� Rs. Two lakh' It is stated that the limits mentioned above were further enhanced as per Circular dated 9.1.2006 to group B from Rs. 5 lakhs to 7 lakhs, for Group C from 3 lakhs to Four lakhs and fifty thousand and for Group D from Rs. 2 lakhs to three lakhs. Again after the implementation of the 6 th CPC the monetary criteria pegged at two time or double the existing limits as per HQ circular dated 9.1.2006. Thus according to the respondents, the monetary limits stand revised as follows:
Group B Rs. 14 lakhs
Group C Rs. 9 lakhs
Group D Rs. 6 lakhs
It is discernible from Annexure R.2(h). Here the total amount obtained by the family (applicant and his brother) is Rs. 15.96 lakhs. It is also pointed out that the Hon'ble Supreme Court in Union of India and another Vs. Shashank Goswami (supra) had sustained the policy and the above circulars of the office of the C&AG relating to compassionate appointment which the applicant has referred to as the one applicable to him. It is not that if the family of the employee is in receipt of family pension the dependents of the family would straight away be ineligible for compassionate appointment. What has been specified is that if the total income including family pension, and of other earning member; amount obtained by way of interest (from terminal benefits) exceeds a certain limit, appointment on compassionate ground cannot be considered. Those aspects were also not considered while granting appointment under Annexure A1, it is argued.
34. It is argued on behalf of the respondents since that the order is ab initio void for gross violation of provisions contained in Annexure A4 Scheme, the question of issuance of notice and hearing the applicant would be totally unnecessary and in any event since in this case one month's pay and allowances was given in lieu of one month's notice, that requirement also stood complied with and as such the order of termination is not liable to be questioned at all.
35. There can be no doubt that if appointment is made by mistake, government is at liberty to rectify the defect or mistake. See the decisions of Hon'ble Supreme Court in Indian Council of Agricultural Research and another Vs. T.K. Surayanarayan and others - ( 1997) 6 SCC 766 and Union of India and another Vs. Narendra Singh - (2008) 2 SCC 750. In Narendra Singh's case (supra) it was held:
'32.........But we cannot countenance the submission of the respondent that the mistakes cannot be corrected. Mistakes are mistakes and they can always be corrected by following the due process of law. In ICAR Vs. T.K.Surayanarayan b� (1077) 6 SCC 766 it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules.'
36. From what have been stated above, it would appear that the officer who issued Annexure A1 order did not consider the various aspects which were required to be considered while granting appointment on compassionate ground. The respondents may also be justified in contending that when an illegality is found out in the order passed by the officer granting compassionate appointment, without resorting to the procedure contemplated and without following the parameters required to be insisted upon, they have got every right to cancel the appointment. But the learned Senior counsel for the applicant would submit that since Annexure A4 is a self contained scheme, the procedure prescribed under Rule 17 should have been followed for cancelling the appointment.
37. Rule 17 speaks of termination of compassionate appointment on the ground of non -compliance of any of the conditions stated in the offer of appointment. The respondents would contend that here the termination is not on the ground of non-compliance of any of the conditions in the offer of appointment but on the ground that there is total illegality in the order of appointment which goes to the root of the mater so as to render the same as nullity and void ab initio and if that is so, the requirement of following Rule of 17 of Annexure A Scheme cannot come into play. If viewed in that line, there is force in the contention so raised by the respondents. According to the respondents, the procedure contemplated by Rule 5 of CCS (TS) Rules alone was required to be followed. Rule 5 therein enables the government to dispense with the service of a temporary employee forthwith, in lieu of one month's notice, the appointee is given a sum equal to pay and allowances for one month as mentioned in the proviso to Rule Rule 5(1), that will suffice the requirement. But here the appointment of the applicant on compassionate scheme it has been set at naught but without notice to the applicant. Slight distinction has to be drawn with reference to the power granted for termination of service provided under Rule 5(1) of CCS (TS) Rules, 1965. It is true that as per Annexure A1 it was specified that the appointment was under CCS (TS) Rules and the termination order was issued under CCS (TS) Rules. Compassionate appointment can be terminated on the ground of any of the conditions stated in the offer of appointment after providing an opportunity to the compassionate appointee by way of issue of shaw cause notice. In that context the issue of show cause notice can be dispensed with by granting pay and allowances for notice period in lieu of show cause notice but as far as the case on hand is concerned, whatever may be the ground which may be available to the respondents to decide termination of the applicant's service, still the applicant was entitled to be heard in the matter, for which the applicant should have been heard. But the contention raised by the applicant that once appointment was given as per the compassionate appointment scheme, the question whether there was compliance of the conditions stipulated therein cannot be gone into subsequently is found to be unsustainable.
38. But the learned Senior counsel for the applicant would submit that as far as the applicant is concerned, he had shown all the details as shown in the format of the applicant and there was no fault on his part. It has to be presumed that all the procedure/formalities were complied with before the appointment order is issued and as such it can never be said to be an order ab initio void. Since Annexure A4 is a self contained scheme, the procedure for termination should be according to that scheme.
39. In this context the learned Senior counsel for the applicant has also referred to a decision of Calcutta High Court in Smt.Asima Lahiri Vs. National Institute of Technology decided on 29.1.2015 - (WPNo. 22280 of 2014). One of the contentions therein were taken exception to by the learned Senior counsel for the respondents. The view taken therein that the petitioner therein had received some arrears on revision of pension and that is a ground for terminating her appointment, was rejected by the High Court in that case. That is no reason to say that the satisfaction or fulfillment of the conditions requisite for getting appointment under Annexure A4 scheme and other decision of the Hon'ble Supreme Court referred to earlier can be ignored. Therefore, that part of the observation may not be acceptable as such. However, it was lastly said 'there has neither been any allegation of the petitioner contravening or not complying with any condition stated in the offer, nor any provision of the service rules by which she was governed. Besides, no notice to show cause (a requirement in terms of paragraph 17) was issued and that the termination could not have been brought about except in accordance with paragraph 17 and the same is manifestly indefensible, it was held. This also shows that before termination of the appointment, the appointee should be given notice and he should have been heard in the matter.
40. It is stated that the Dy.C&AG is equivalent to Secretary as mentioned in Annexure A3. So far as C&AG is concerned there is no Secretary, but the Dy.C&AG is equivalent to that of Secretary. In any event, according to the respondents, since it was the appointing authority who himself issued the order of termination of service, it cannot be said that he lacked jurisdiction to issue the order. Not only that as per Annexure A-1, only a temporary appointment was given. Applicant is bound by Annexure A-1 also. Be that as it may, since we find that the applicant should be given an opportunity of being heard in the matter, Annexure A2 order of termination of service is set aside. But the request made by the applicant that he should be reinstated in service is found to be untenable. It is hence rejected. After issuing notice to the applicant and giving him an opportunity of being heard, the competent authority shall take appropriate decision in the matter. Such a decision should be taken within three months from the date of receipt of a copy of this order.
41. O.A is disposed of accordingly. No order as to costs.
(Mrs.P. Gopinath) (N.K. Balakrishnan) Administrative Member Judicial Member kspps