Central Administrative Tribunal - Hyderabad
P Hari Prasad vs Post Ap Circle on 22 March, 2024
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OA.No.797/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
ORIGINAL APPLICATION NO.020/00797/2021
ORDER RESERVED ON 17.11.2023
DATE OF ORDER: 22.03.2024
CORAM:
HON'BLE MRS. SHALINI MISRA, ADMINISTRATIVE MEMBER
P.Hari Prasad S/o Late P.Akkulappa
(Ex.GDS BPM, Galibipalli B.O. a/w Lepakshi SO)
Aged 43 years, R/o Galibipalli Village & BO
Lepakshi S.O.- 515331
Ananthapur Dist. .....Applicant
(By Advocate Sri M.Venkanna)
Vs.
1. Union of India represented by
Secretary, Government of India
Ministry of Communication & IT
Department of Posts - India
Dak Bhavan, Sansad Marg
New Delhi - 110001.
2. The Chief Postmaster General
Andhra Pradesh Circle
Vijayawada - 520013.
3. The Superintendent of Post Offices
Hindupur Division
Hindupur - 515201. ....Respondents
(By Advocate Sri N.Parameswara Reddy, Senior Panel Counsel for Central
Government)
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OA.No.797/2021
ORDER
PER: HON'BLE MRS. SHALINI MISRA, ADMINISTRATIVE MEMBER
1. The applicant has filed the present OA with a prayer to quash and set aside the impugned rejection vide memo dated 20.10.2020 and direct the respondents to consider his case for compassionate appointment once again as one time measure scheme.
2. The case of the applicant is that his father while working as GDS BPM, Galibipalli BO was put off duty in the month of January, 2004 pending enquiry. While so, his father died in harness on 18.02.2004. On crediting the amount of Rs.2500 to the respondents towards loss of amount caused by the applicant's father, the payment towards Exgratia Gratuity and Severance amount has been paid to the mother of the applicant. When the applicant applied for compassionate appointment, the 3rd respondent vide letter dated 27.09.2005 intimated that his case cannot be recommended for compassionate appointment as he is not qualified educationally and also the ex-GDS(father of the applicant) has blemished record of service. After passing of SSC examination, the applicant has again made requests for compassionate ground appointment. When 1st respondent vide letter dated 05.03.2020 ordered all Chief Post Master Generals(CPMG) to review of compassionate engagement cases of dependents of deceased which were rejected by the Committee on Compassionate Engagement (CCE) between the period 2005 till May 2017 as a onetime measure, the respondents have called for all the papers from the applicant and accordingly applicant submitted all papers including his education, family 3 OA.No.797/2021 members and income certificate. But the 2nd respondent vide impugned memo dated 22.10.2020 had again rejected his case with a reason that his father is having blemished record of service. The applicant submits that his father was not proceeded against any disciplinary proceedings by way of giving a charge sheet and therefore it is a settled principle that he should be treated as if nothing against him since the alleged misconduct is not a proven one. Any proceedings either civil or criminal would abate on the death of the person against whom they have been initiated. The deceased official cannot be treated as committed any misconduct unless the same is proved against him. As per the clarification of the 1st respondent vide letter dated 12.11.2021, if the allegations against the deceased are not proved, the compassionate appointments of the wards are to be considered. Therefore, the impugned order is against the settled principles and clarifications issued by the 1st respondent. It is further submitted that after rejection of his claim for compassionate appointment on the ground of blemished record of service, the applicant made representations dated 25.11.2020 & 23.08.2021 stating that his father was only put off and he died in harness pending completion of preliminary enquiry and hence his case should be considered favourably. But the respondents did not consider the same till date. Aggrieved, he filed the present OA.
3. On notice, the respondents have filed reply statement wherein they submit that the father of the applicant while working as GDSBPM, Galibipalli BO a/w Lepakshi SO had committed misappropriation of public/government funds in Post Office Savings Bank and Recurring Deposit accounts to the tune of Rs.29,265/- and he was placed under off-duty w.e.f. 15.08.2003. A case was 4 OA.No.797/2021 registered in the Loss & Fraud Register of Hindupur Division on 13.08.2003. A charge sheet under Rule-10 of the GDS (Conduct & Employment) Rules, 2001 was issued to the GDS on 29.01.2004 and a copy was delivered to him on 05.02.2004 but he was reported to have died on 18.02.2004 i.e. before commencing the inquiry and accordingly, the disciplinary action initiated against the said GDS could not be finalized and was closed. Consequent on demise of Ex-GDS, the applicant has applied for engagement to GDS post under compassionate ground during 2005 and the same was processed as per the scheme/guidelines on the subject. The applicant's case was considered by the Circle Relaxation Committee met on 22.07.2005 and 12.08.2005 along with all other cases and however rejected his case as the Ex-GDS had put in blemished record of service and as the applicant was not having the qualified education. The same was informed to the applicant vide 3rd respondent's letter dated 27.09.2005. After that, the applicant has kept quiet for more than 15 years without making any claim/representation till 2020 even after he has qualified in SSC during June-2006. As per the Directorate's OM dated 30.05.2017, it is ordered to review the cases of compassionate appointment which were earlier rejected by the Committee on Compassionate Engagement(CCE) between the period 2005 and May, 2017, as a one-time measure. After knowing the said OM, the applicant has again applied for compassionate appointment through the Assistant Supdt. of Post Offices, Hindupur Sub-Division. Accordingly, the applicant's case was reconsidered/reviewed by the GDS CCE met on 15.10.2020 along with all other cases as per the scheme and guidelines issued by Postal Directorate and however the Committee did not recommend the case for engagement to GDS post on the ground of 'blemished record of service' and 5 OA.No.797/2021 the same was informed to the applicant vide speaking order dated 23.11.2020. Though the applicant quoted and placed reliance on the orders issued vide Directorate's letter dated 12.11.2021, it is specifically ordered in the said letter that the other terms and conditions of guidelines issued vide Directorate letter dated 30.05.2017 will remain unchanged as per which the cases which have already been settled will not be reopened. Since, it is a settled case, it will not be re-opened. The primary object of appointment on compassionate ground is to save the bereaved family from sudden financial crisis occurring due to death of sole bread earner. It is thus, an exception to the general rule of equality and not another independent and parallel source of employment and cannot be claimed as a matter of right and heritable public office. The Hon'ble Supreme Court in a catena of cases viz., in Umesh Kuma Nagpal vs. State of Haryana and others, National Hydroelectric Power Corpn. Vs. Nanak Chand,(2004) 12 SCC 437 , Hindustan Aeronautics Ltd. Vs. A Radhika Thirumalai (1996) 6 SCC 394, LIC vs. Asha Ramachandra Ambedkar (1994) 2 SCC 718 and in Santosh Kumar Dubey vs. State of UP (2009) 6 SCC had reiterated the same thing. The various Benches of this Tribunal viz. Jabalpur Bench in the matter of Kamlesh Trivedi vs. Union of India, Ahmedabad Bench in the matter of Brijesh Kumar D.Patel vs. Union of India and Hyderabad Bench in the case of A.Leelasankar in OA.No.1044/2018 and Hon'ble High Court of Madras in WP(MD).No.20872/2013 in P.Balasubramanian vs. The Commissioner have also reiterated the same thing as laid down by the Hon'ble Supreme Court in the case of compassionate ground appointment. Hence, the OA being devoid of merit is liable to be dismissed.
6OA.No.797/2021
4. Heard Sri M.Venkanna, learned counsel for the applicant and Sri N.Parameswara Reddy, learned Senior Panel Counsel for the respondents and perused the materials placed on record.
5. As can be seen from the pleadings, the applicant's father died when the charge sheet was issued on him on the alleged misappropriation of funds and enquiry was pending in January, 2004. Then immediately the applicant applied for appointment on compassionate grounds but the same was rejected by the respondents in the year 2005 for want of appropriate educational qualification and also his father has blemished service record. Subsequently, applicant passed SSC examination in 2006 but did not apply for the compassionate ground appointment immediately, after 15 years, he approached the authorities for reconsideration of his case for compassionate appointment which was reconsidered and re-examined in 2020 under 'one time measure' but rejected again due to his father's blemished service record(misappropriation of funds). The 15 years' gap when the applicant maintained silence also gives an impression that there is not much necessity of the appointment. As per the Family Member Certificate issued by Revenue Department also, it comes out that there is no dependent family member and all are married including the applicant. The Postal Directorate has given an appropriate order for compassionate appointment vide letter dated 15.02.2001 which reads as under:
"Compassionate Appointments as the expression itself implies, is meant as a gesture or welfare and goodwill by the Government, keeping in view the work done by the former EDA (now GDS). Needless to say, such a gesture would not be at all permissible in the case of an EDA (now GDS) who was the subject of departmental proceedings for some wrong doings. Extension of the aforesaid welfare measure to the dependent of an EDA (now GDS) dying in harness can only be justified when the performance of the EDA 7 OA.No.797/2021 (now GDS) was found to be satisfactory. Any deviation from this norm would be viewed seriously."
6. The case of the applicant was considered by the Circle Relaxation Committee which met on 22.07.2005 and 12.08.2005 and rejected because of his father's blemished record of service and the applicant not having the qualified education at that particular time. In 2020, 'as one time measure', the case for compassionate appointment was reconsidered but was rejected again because of his father's past record. Though there is a clarification issued by Nodal Ministry, Govt. of India, saying that the compassionate engagement to a dependent of deceased GDS where the service rendered by him was found to be unsatisfactory due to their involvement in serious financial irregularities, but expired before award of penalty is permissible but this was made applicable from the date of issue of the order i.e. 30.11.2015 and no rejected past cases would be permissible to be re-opened. It is settled law that compassionate appointment is not a right and therefore cannot be granted after a lapse of a reasonable period as held by the Hon'ble Supreme Court and High Courts and Tribunals in any number of cases in this regard. The Hon'ble Apex Court vide its judgment dated 04.05.1994 in the case of Umesh Kumar Nagpal vs. State of Haryana and others (JT 1994(3) SC 525) has laid down the following important principles:
a. Only dependents of an employee dying in harness leaving his family in penury and without any means of livelihood can be appointed on compassionate ground.
b. The whole object of granting compassionate appointment 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 get over the emergency.8 OA.No.797/2021
c. Offering compassionate appointment as a matter of course irrespective of the financial condition of the family of the deceased or medically retired Government servant is legally impermissible.
d. Compassionate appointment cannot be granted after lapse of a reasonable period and it is not a vested right which can be exercised at any time in future.
7. In National Hydroelectric Power Corpn. Vs. Nanak Chand, (2004) 12 SCC 487, the Hon'ble Apex Court had observed as follows:
"6. As was observed in State of Haryana vs. Rani Devi, it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right."
In Hindustan Aeronautics Lts. Vs. A.Radhika Thirumalai, (1996) 6 SCC 394, the Hon'ble Apex Court vide para-5 held as below:
"5. In Umesh Kumar Nagpal, this Court has pointed out that appointment in public services on compassionate ground has been carved out as an exception, in the interest of justice, to the general rule that appointments in the public services should be made strictly on the basis of open invitation of applications and merit and no other mode of appointment nor any other consideration is permissible. A compassionate appointment is made out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided the family would not be able to make both ends meet and the whole object of granting such appointment is to enable the family to tide over the sudden crisis. This court has also laid down that an appointment on compassionate ground has to be given in accordance with the relevant rules and guidelines that have been framed by the concerned authority and no person can claim appointment on compassionate grounds in disregard of such rule or such guideline [see: Life Insurance Corporation vs. Asha Ramchandra Ambekar].
It is observed in LIC vs. Asha Ramachandra Ambedkar, (1994) 2 SCC 718 that:9 OA.No.797/2021
"The courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, it should never be done. In the very case itself, there are regulations and instructions which we have 1 AIR 1966 SC 529, 535: (1966) 1 SCR 543 extracted above. The court below has not even examined whether a case falls within the scope of these statutory provisions. Clause 2 of sub- clause (iii) of Instructions makes it clear that relaxation could be given only when none of the members of the family is gainfully employed. Clause 4 of the circular dated January 20, 1987 interdicts such an appointment on compassionate grounds. The appellant Corporation being a statutory Corporation is bound by the Life Insurance Corporation Act as well as the Statutory Regulations and Instructions. They cannot be put aside and compassionate appointment be ordered."
'That the High Courts and Administrative Tribunals cannot give direction for appointment of a person on compassionate grounds, but can merely direct consideration of the claim for such an appointment.' In Santosh Kumar Dubey vs. State of UP (2009) 6SCC, the Hon'ble Apex Court had observed thus:
"11. The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints.
12. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in Government service."
In State of J&K vs. Sajad Ahmed Mir, [(2006) 5 SCC 766], the Hon'ble Apex Court explained why delay may be a negative factor as below:
"11. ... Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite 10 OA.No.797/2021 of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution."
In Haryana State Electricity Board v. Naresh Tanwar (1996) 8 SCC 23, it was held by the Hon'ble Apex Court that:
"9. It has been indicated in the decision of Umesh Kumar Nagpal that compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. In the other decision of this Court in Jagdish Prasad case, it has been also indicated that the very object of appointment of dependant of deceased employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years." emphasis in original) In State of U.P. v. Paras Nath, the Apex Court held that:
"5. The purpose of providing employment to a dependant of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case."
In Haryana SEB v. Krishna Devi(2002) 10 SCC 246, the Hon'ble Apex Court had observed that:
"7. As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we are of the opinion that it was not to meet the immediate financial need of the family. The High Court did not consider the position of law and allowed the writ petition relying on an earlier decision of the High Court."11 OA.No.797/2021
The Jabalpur Bench of this Tribunal in OA.No.708 of 2008 dated 17.03.2009 in the matter of Sri Kamlesh Trivedi vs. Union of India & others held that:
"..........the family is not found to be in penury condition and there were more indigent person than the applicant. Thus, the Tribunal would not be justified to reverse these findings recorded after complete appreciation of factual position."
The Ahmedabad Bench of this Tribunal in OA.No.179 of 2009 in the matter of Sri Brijesh Kumar D.Patel vs. Union of India & others had held that:
"This is a factual finding and the Tribunal will not enter into merits of the same because whether the deceased left the family in penury and without any means of livelihood has to be decided by the Competent Authority and the Courts cannot normally interfere. Compassionate appointment cannot be claimed by way of right or heritable public office.
When subsequent to the death of the bread earner, sufficient time has passed and bereaved family has maintained themselves, there can be no direction to the competent authority to consider the claim for compassionate appointment."
The Hyderabad Bench of this Tribunal in A.Leelasankar's case in OA.No.1044/2018 on duly relying upon the decision of Hon'ble Supreme Court in Umesh Kumar Nagpal vs. State of Haryana & Others (1994) 4 SCC 138 held that:
"Compassionate appointment is not a bonanza. It has a specific purpose of coming to the rescue of the deceased employee's family where there is a sudden loss of the bread winner. Mere death of an employee does not entitle the family member to be considered for compassionate appointment, as a matter of right. The financial condition of the family has to be looked into. In the present case, the family is not living in indigent circumstances. There are no liabilities and also there are no dependent family members to be looked after by the applicant. Object of the compassionate appointment is to provide relief from destitution. Just as applicant is looking for a job, there are many other families whose living standards could be much worse than that of the applicant. A member of such disadvantageously placed family would be looking out desperately 12 OA.No.797/2021 for an opening to survive and take care of those who depend on him by participating in the open competition. Whereas, compassionate appointment, is an exception to Article 14 of the Constitution of India, wherein employment is given on special circumstances by relaxing Recruitment Rules. Hence, its application has to be done with great care and concern so that the object of compassionate appointment is served effectively and purposefully. In the present case, none of the parameters laid down for compassionate appointment have been satisfied. Hence, the rejection of the request for compassionate appointment by the respondents is in order."
The Hon'ble High Court of Madras vide its recent judgment dated 09.01.2018 disposed the case of W.P.(MD) No.20872/2013 between P.Balasubramanian vs. The Commissioner had observed as follows:
"5.This Court is of the opinion that consideration for appointment on compassionate ground is to be construed as violation of Articles 14 and 16 of the Constitution of India and is only in the nature of concession and therefore does not create a vested right in favour of the claimant. A compassionate appointment scheme is a non-statutory scheme and is in the form of a concession and it cannot be claimed as a matter of right by the claimant to be enforced through a writ proceeding. A compassionate appointment is justified when it is granted to provide immediate succour to the deceased employee. Mere death of a Government employee in his harness, it does not entitle the family to claim compassionate employment. The competent authority has to examine the financial condition of the family of the deceased employee and only if it is satisfied that without providing employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family of the deceased employee.
11. In this view of the matter, this Court has to examine the scope of the scheme. The scheme being an exception, the authorities competent has to implement it in its strict terms. Equal opportunity in a public employment is a Constitution mandate.
13. In case of compassionate appointments, no such constitutional mandated requirements have been followed. Thus, very scheme itself is an exception and not in accord with the constitutional scheme. Compassionate appointment scheme as a special one necessarily to be restricted to the extent possible, so as to provide appointment only to the genuine and warranting families. This apart, the overall strength of the compassionate appointees should not exceed more than the restricted level and if such a kind of special appointments are increased in the public posts, this Court is of the view that the efficiency level in the public administration will certainly be affected.13 OA.No.797/2021
15. Thus, the concept of compassionate appointment itself is to be reconsidered by the Government and it should be restricted so as to provide appointment only to the legal heirs of the deceased in genuine circumstances. Otherwise, the scheme of compassionate appointment will have a negative impacts on the good governance and further, it will affect the chances of the meritorious candidates, who can participate in the public administration in the better manner.
16. Rules of Reservation being a constitutional mandate any scheme violating the same has to be implemented cautiously and restrictedly. Thus, genuineness of the claim made by the person on compassionate grounds to be strictly in accordance with the terms and conditions and further, the State cannot be going on extending the scope of compassionate appointment so as to dilute the principles of reservation under the Constitution.
27. The Hon'ble Supreme Court in the matter of compassionate appointment has rendered a judgment setting out the principles, the guidelines and the scope of providing appointment on compassionate ground. Compassionate ground being an exception to that of the general recruitment, the same should be provided with all caution taking note of the fact that compassionate appointment will certainly deprive the eligible meritorious youths and citizens of the country to get public employment. When the Courts are providing an exceptional scheme of compassionate appointment to the individual, it is equally relevant to keep in mind that such facilities provided should not affect the rights of other citizens, who are otherwise qualified, meritorious and aspiring to participate in the open competitive process. The granting of relief, if it affects the Constitutional rights of other citizens, then the Courts must be slow in granting such relief.
39. In view of the discussions made above in relation to the facts of the case as well as the legal precedents settled by the Hon'ble Supreme Court of India and by the Hon'ble Division Bench, this Court is of the opinion that the scope of compassionate appointment is to be restricted to the terms and conditions of scheme itself and the same cannot be stretched by the Courts, so as to provide appointment on compassionate ground. This apart, the delay is also a vital factor. The scheme of compassionate appointment cannot be granted after a reasonable period. Such being the consistent view of the Hon'ble Supreme Court of India in respect of the scheme, the grounds raised in this writ petition deserve no further consideration."
8. Compassionate appointment is not a vested right which can be exercised at any time in future. It cannot be claimed or offered after a lapse of time when the crisis is over (Eastern coalfields Ltd. Vs. Anil Badyakar (2009) 13 SCC 112). Though the reason for rejecting the case for compassionate appointment, as stated by the respondents, is blemished service records of his father, the long 14 OA.No.797/2021 delay is also a valid reason for not making compassionate appointment in favour of the applicant. In view of the above, the OA does not hold good and is liable to be dismissed.
9. Accordingly, the OA is dismissed. No order as to costs.
(SHALINI MISRA) ADMINISTRATIVE MEMBER /ps/