Central Administrative Tribunal - Lucknow
Yogesh Kumar Tripathi vs Union Of India on 22 February, 2022
CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I.
Central Administrative Tribunal
Lucknow Bench, Lucknow
Reserved on 04th February, 2022
Pronounced on 22.02.2022
Original Application No. 568 of 2016
Hon'ble Mr. Devendra Chaudhry, Member (A)
Yogesh Kumar Tripathi, aged about 23 years, S/o late Sri
Girija Shanker Tripathi, R/o Village & Post Bahrauli,
Gangaganj, Lucknow.
.............. Applicant
By Advocate: Sri Deepak Shukla
Versus.
1. Union of India through Secretary, Ministry of Home
Affairs, North Block, New Delhi.
2. Director, Directorate of Coordination, (Police Wireless),
DCPW, Block no. 9, CGO Complex, Lodhi Road, New Delhi-3.
3. Assistant Director (Admn.), directorate of Coordination,
(Police Wireless), DCPW, Block no. 9, CGO Complex, Lodhi
Road, New Delhi-3
.............Respondents
By Advocate: Shri Ashutosh Pathak.
ORDER
The present O.A. is a second round of litigation and has been filed against the order dated 06/12/2016 by which the case of the applicant for compassionate appointment has been rejected which itself was passed in compliance of an order of this Tribunal dated 01/07/2016.
2. Per applicant, facts in brief are that his father, late Sri Girija Shankar Tripathy while working on the post of Dispatch Rider in the office of the Directorate of Coordination, Police Page 1 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. Wireless ('DCPW'in short hereinafter) demised on 06/11/2012 due to medical reasons. That,thereafter, the mother of the applicant applied for compassionate appointment on behalf of the applicant vide application dated 03/12/2012 following which certain documents were asked for by the respondents which were supplied to by the applicant in January 2013. That since no decision was forthcoming from the respondents, therefore an OA No 223 of 2016 was filed in this Tribunal wherein the Tribunal vide order 01/07/2016 directed the respondents to consider and decide the pending representation of the applicant within 04 months. Consequently, the impugned order dated 06/12/2016 rejecting the claim of the applicant has been passed. The order is unlawful inasmuch that, inter alia,(i) it is unreasoned, non- speaking, (ii) violative of extant circulars and guidelines, (iii) it is against the law laid by the Hon Apex Court in the matter of
(a) Bhoop vs Matadin Bhardwaj, 1991 2 SCC 128 in which the Hon Apex Court has held that a party cannot be made to suffer for no fault of his own, (b) Rekha Mukherjee vs Ashsih Kumar Das, 2005 2 SCC 427, wherein the Hon Apex Court has held that a party cannot take advantage of its own mistake, (c) State of Orissa vs Dhani Ram 2004 (5) SCC 568 wherein any order passed without reason is non-est, and in light of these citations, the records of the CAC meeting be summoned so that correctness of the impugned order be Page 2 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. unveiled. Further that the Departmental Screening Committee has neither taken into account the DOPT O.M regarding compassionate appointment nor the penurious status of the applicant's family inasmuch that (i) the family comprising of an unmarried daughter whose very marriage could not be solemnised due to financial difficulties, (ii)that there is no house left by the father of the applicant nor any agricultural land, (iii) that there is no earning member in the family and mere grant of pension and retiral benefits cannot be a reason to assert that the family is not indigent and that this view has been held for by the Hon Apex Court also. Therefore,on account of above reasons, the impugned order is worthy of being set aside and directions given to the respondents to appoint the applicant forthwith.
3. Per contra, the respondents have filed counter in which the grounds for assailing the impugned order are denied and it is submitted that, (i) that the impugned order has been passed in compliance of the Tribunal's order dated 01/07/2016, (ii) that it is well reasoned and speaking as possible, (iii)that it is in strict compliance of the rules and DOPT OMs / guidelines including the DOPT circular of 26/07/2012, (iii) that the applicant was considered by the Department Screening Committee (DSC) for compassionate appointments along with 80 other prospective candidates andhis case being less meritorious, he could not be awarded as good marks as other Page 3 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. more deserving candidates whereby 04 candidates were selected as per the available vacancies, (iv) that compassionate appointment is an exception to the rule and the applicant has no fundamental irrefutable right for being appointed as has been held by the Hon Apex Court in a catena of judgements. Hence there is no merit in the applicant's case and so the OA deserves to be dismissed.
4. Heard arguments at length presented by the counsels for both the parties and perused the documents and all the pleadings carefully.
5. The key issue is the legality of the impugned order qua the cited guidelines/circulars and the judgements of Hon Apex Court.
6. Inorder to settle the issue, it would be first of all worthwhile to examine the extant circulars / guidelines, the impugned order, minutes of the meeting of the DSC dated 26/10/2016. For this, relevant portions of these are extracted below:
Extracts of impugned order dated 06/12/2016 "...Earlier the Compassionate appointment cases of 74 applicants including the case of Sri Yogesh Kumar Tripathi was placed before the Departmental Screening committee for compassionate appointment for consideration and the recommendation of the Committee was forwarded to MHA.
A committee was constituted in the Directorate as per the direction conveyed by MHA on 20.09.2016 to examine all the cases/applications for compassionate appointment. The committee Page 4 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. was asked to recommend the name of 4 applicants for appointment as there existed 4 posts to be filled on compassionate ground.
The Committee held meetings and examined all 81 cases/applications for compassionate appointment including the application of Sri Yogesh Kumar Tripathi. The committee discussed the matter in detail as per the DoP&T instructions/FAQs on the subject.
The Committee recommended the name of 4 candidates for appointment on compassionate ground, which does not include the name of Sri Yogesh Kumar Tripathi and is approved by the competent authority.
Hence, as explained above, the application of Shri Yogesh Kumar Tripathi alongwith 80 applications regarding appointment on compassionate ground in accordance with the rules and regulations on the subject has been considered for compassionate appointment. However, Sri Yogesh Kumar Tripathi could not be selected. In compliance of the orders dated 01.7.2016 passed by the Hon'ble CAT, Lucknow in O.A. No. 223/2016, the matter stands disposed of accordingly...."
Excerpts of Counter affidavitpara 28 "28......
(a) Recentness of the case (Time since death of employee) - The concept of compassionate appointment is largely related to the need of immediate assistance of the family of Government servant in order to relieve it from sudden economic distress.
Therefore, this factor has been given highest weightage of 30. Weightage points are awarded linearly on the scale of 30-0 i.e. 30 points are awarded to the cases of current calendar year and zero point to the oldest case.
(b) Pension:- The pension being regular income has direct bearing to the quality of survival, has also been given a weightage of 30. The 30 weightage points are awarded linearly on the scale of 0 to 30 points. The lowest pension has been awarded 30 points and the highest 0.
(c) Number of dependent(s) in family:- The number of dependent family members is also one of the important factors as all financial resources are divided among them. Therefore, a weightage of 20 points has been kept for the purpose. 5 points are awarded for each dependent subject to maximum 20 points. The family members have been considered as dependent as per the Government guidelines.
(d) Amount received after death :- The amounts viz. DCRG, Leave encashment, GPF & Group Insurance received by the family after the death of the employee has been taken as the immediate financial support available with the family. Amount received after death has been enhanced at the rate of 8% per year to rationalize for compassion purpose. A weightage of 10 points are awarded Page 5 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. linearly on the scale of 0-10 i.e. lowest rationalized amount has been awarded maximum 10 points and the highest 0 point.
(e) Children Age:- Since younger children would need support for a longer period, age of the children is also one of the important factor. 10 points have been awarded linearly on the scale 01- 10i.e. lowest average age of dependent children is awarded maximum 10 points and the highest (25 years or more) 0 point. On the basis of the above considerations, the committee assessed the candidates according to the weightage or different parameters & points and accordingly recommended the names of candidates for appointment on compassionate ground, which does not include the name of the applicant Sri Yogesh Kumar Tripathi. Excerpts of the Minutes of the DSC dated 26/10/2016 "...On one basis of the above mentioned considerations, the committee assessed candidates according to the weightage of different parameters and points were given each parameter against each applicant. The names were then arranged in the order of total points obtained and is enclosed herewith(Annexure- II).
Accordingly, the committee recommends the name of following 4candidates who got the highest points in the order of merit for appointment on compassionate ground against 4 vacancies of Group 'C' post in DCPW.
1. Smt. Sunita Devi w/o Late Shri Kishan Ex. Messenger DCPW(14.4.2006)
2. Smt. Priti Kumari, W/o Late Ramesh Kumar Viyogi, Ex.
MTS DCPW (04.8.2016)
3. Smt. Kanta, W/o Late Vinod Kumar, Ex. Mess Boy, DCPW (12.08.2009).
4. Smt. Bhagwati W/o Late Jaikishan, Ex. DR DCPW (23.09.2014).
The Committee also recommends the name of following 2 (two) candidates as reserve in order of merit.
1. Sri Durgesh Kumar S/o Late Dilip Kumar, Ex. DR DCPW(13.1.2016)
2. Sri Vikas, S/o Late Rajesh, Ex. MTS (14.1.2011).
Sd/- Sd/- Sd/-
(R.K. Verma) (D. Mukhopadhya) (K.C. Sharma)
Dy. Director Jt. Director Jt. Director
Sd/- Sd/-
(M.S.N. Swamy) (P. Ghosh)
Jt. Director Director, CSFL, Kolkata
Excerpts of the DOPT O.M dated 16/01/2013 on
compassionate appointment -
".7. DETERMINATION/AVAILABILITY OF VACANCIES:- Page 6 of 22
CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I.
(a) Appointment on compassionate grounds should be made only on regular basis and that too only if regular vacancies meant for that purposes are available.
(b) Compassionate appointments can be made upto a maximum of 5% of vacancies falling under direct recruitment quota in any Group 'C' post. The appointing authority may hold back upto 5% of vacancies in the aforesaid categories to be filled by direct recruitment through Staff Selection Commission or otherwise so as to fill such vacancies by appointment on compassionate grounds. A person selected for appointment on compassionate grounds should be adjusted in the recruitment roster against the appropriate category viz. SC/ST/OBC/ General depending upon the category in which he belongs. For example, if he belongs to SC category he will be adjusted against the SC reservation point, if he is ST/OBC he will be adjusted against ST/ OBC point and if he belongs to General category he will be adjusted against the vacancy point meant for the General category.
(c) While the ceiling of 5% for making compassionate appointment against regular vacancies should not be circumvented by making appointment of dependent family member of Government servant on casual/daily wage/adhoc/contract basis against regular vacancies, there is no bar to considering him for such appointment if he is eligible as per the normal rules/orders governing such appointments.
(d) The ceiling of 5% of direct recruitment vacancies for making compassionate appointment should not be exceeded by utilizing any other vacancy e.g. sports quota vacancy.
(e) The committee constituted for considering a request for appointment on compassionate grounds should limit its recommendation to appointment on compassionate grounds only in a really deserving case and only if vacancy meant for appointment on compassionate grounds will be available within a year in the concerned administrative Ministry/department/Office, that too within the ceiling of 5% of vacancies falling under DR quota in Group 'C' posts. (O.M. No. 14014/18/2000-Estt.(D) dated 22.6.2001.
(f) Calculation of vacancies by grouping of posts for small offices/ cadres- Grouping of posts in small offices/cadres for the purpose of calculation of vacancies for appointment on compassionate grounds is allowed. Consequently, Group 'C' posts in which there are less than 20 direct recruitment vacancies in a recruitment year may be grouped together and out of the total number of vacancies 5% may be filled on compassionate grounds subject to the condition that appointment on compassionate grounds in any such post should not exceed one. For the purpose of calculation of vacancies for compassionate appointment, fraction of a vacancy either half of exceeding half but less than one may be taken as one vacancy (Para 2 and 3 of O.M. No. 14014/24/1999-Estt(D) dated 28.12.1999).
(g) Liberalized Method of calculation of vacancies for small Ministries/ Department - The small Ministries/Departments may apply a mere liberalized method of calculation of vacancies under 5% Page 7 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. quota for compassionate appointment. The small Ministries/Department, for the purposes of these instructions, are defined as organizations where no vacancy for compassionate appointment could be located under 5% quota for the last 3 years. Such small Ministries/Department may add the total of DR vacancies in Group 'C' and erstwhile Group 'D' posts (excluding technical post) arising in each year for 3 or more preceding years and calculate 5% of vacancies with reference to the grand total of vacancies of such years, for locating one vacancy for compassionate appointment. This is subject to the condition that no compassionate appointment was/has been made by the Ministries/ Departments during 3 years or number of years taken over and above 3 years for locating one vacancy under 5% quota (Para 4 of O.M. No. 14014/3/2005-Estt(D) dated 9.10.2006.
(h) The compassionate appointment can also be made against technical posts at Group 'C' and erstwhile Group 'D' level. The 5% quota of vacancies will be calculated on the basis of total DR vacancies arising in a year in the technical posts. (Para 2 of O.M. No. 14014/3/2005-(Estt(D) dated 19.1.2007.
The Supreme Court has ruled in the case of Himachal Road Transport Corporation Vs. Sinesh Kumar (JT 1996 [5] SC 319) on May 7, 1996 and Hindustan Aeronautics Limited Vs. Smt. A. Radhika Thirumalai(JT 1996 [9] SC 197) on October 9, 1996 that appointment on compassionate grounds can be made only if a vacancy is available for that purpose.
The Hon'ble Supreme Court in its judgment dated 05.4.2011 in Civil Appeal No. 2206 of 2006 filed by Local Administration Department Vs. M. Selvanvayatgam @ Kumaravelu has observed that "an appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependents and the financial deprivation caused to the dependents as a result of his death, simply because the claimant happened to be one of the dependents of the deceased employee would be directly in conflict with Articles 14 & 16 of the Constitution and hence, quite bad and illegal. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind." (O.M. no. 14014/3/2011-Estt(D) dated 26.6.2012.) As may be seen, it is noteworthy that in para 28 of the counter it is clearly stated that perDOPT instructions, the details of each criteria adopted by the DSC for evaluation and details of the same have been elaborately stated in the Counter para 28 (a) to (e) extracted above such as there is a 30 marks weightage for assessing the time since death of employee with the marks being awarded such that most recent Page 8 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. demise would get highest marks and the oldest getting lowest marks which is reasonable inasmuch it tries to emphasize that most recent demise cases are given priority as they would be facing the maximum immediate hardship due to recent demise of the earning member of the family - the deceased employee and the older demise in terms of number of years being given less marks due to the cognisance of the fact that the concerned family has been able to tide over the immediate financial stress brought about the demise of the earning member - the demised employee for the years which have passed by for quite some time. Similar weightage and scale of allocation has been adopted for other criteria such as amount of pension (30 marks), number of dependants in the family (20 marks), amount received as retiral benefits including DCRG etc (10 marks), number of younger children (10 marks). As may be seen para 28 of the CA, there is reasonable justification in the manner in which inter-se marks would be given to competing candidates in respect of each criterion. In such an event, the applicant was not the only one who could not get better marks than the four finally selected candidates. That is to say that since the case of 81total candidates was considered along with the case of the applicant and only 04 could make the mark and be offered appointment, it means that 77 were ousted and this included the applicant also. This clearly also implies that no partiality or illegality or irregularity Page 9 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. could have been done in allocation of marks to the applicant as the fate of 77 non-selected candidates was similar to that of the applicant inasmuch that they also could not be selected for offer of compassionate appointment. While the criteria adopted by the Executive - the respondents for granting the compassionate appointment on the basis of laid down merit criteria is their entire jurisdiction and the Courts cannot intervene in it, the applicant has also not challenged the marking criteria.
6.1 Going forward, it would be well now to cite the law laid down by the Hon Apex court in the matter of State of Himachal Pradesh vs Shashi Kumar on 16 January, 2019 comprising the bench of Hon H Gupta, J. and Hon D Chandrachud, J., wherein, it was held as under -
"....The decision in State Bank of India Vs. Somvir Singh 7 has noticed the scheme for appointment of dependants of 6 (2004) 7 SCC 265 7 (2007) 4 SCC 778 of deceased employees on compassionate grounds framed by the State Bank of India. The Court expressly held that the authorities were not in error in taking account of the terminal benefits, investments and the monthly family income including the family pension paid by the Bank. The view of this Court finds expression in the following extract:
"12. The competent authority while considering the application had taken into consideration each one of those factors and accordingly found that the dependants of the employee who died in harness are not in penury and without any means of livelihood. The authority did not commit any error in taking the terminal benefits and the investments and the monthly family income including the family pension paid by the Bank into consideration for the purposes of deciding as to whether the family of late Zile Singh had been left in penury or without any means of livelihood. The scheme framed by the appellant Bank in fact mandates the authority to take those factors into consideration. The authority also did not commit any error in taking into consideration the income of the family from other sources viz. the agricultural land." (emphasis supplied) In the view of this Court, the only issue to be considered was whether the claim for compassionate appointment had been considered in accordance with the Scheme. The income of the family from all sources was required to be taken into Page 10 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. consideration according to the Scheme. This having been ignored by the High Court, the appeal filed by the Bank was allowed.
The judgment of a Bench of two-Judges in Mumtaz YunusMulani Vs. State of Maharashtra8 has adopted the principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in the Scheme. The decision in Govind Prakash Verma (supra) has been duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in that case.
In Union of India Vs. Shashank Goswami9, this Court considered a circular issued by the Office of the Comptroller and Auditor General of India in terms of which the total income of the family from all sources, including terminal benefits received, was required to be taken into account. Income limits were specified in the circular for Group 'B', Group 'C' and Group 'D' posts. Taking note of the fact that a family pension has been authorized to the widow of the deceased employee, this Court held that the case of the dependant did not fall within the income limits meant for Group 'C' posts.
The same principle has been reiterated in another decision of a Bench of two-Judges of this Court in State Bank of India Vs. Surya Narain Tripathi10. 8 (2008) 11 SCC 384 9 (2012) 11 SCC 307 10 (2014) 15 SCC 739 While adverting to a submission of learned counsel based on the decision in Govind Prakash Verma (supra), this Court noted thus:
"8. He relied upon the judgment of this Court in Govind Prakash Verma v. LIC[Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] where a view has been taken that the compassionate appointment cannot be refused on the ground that another member of the family had received appropriate employment and the service benefits were adequate. We may humbly state that this view runs counter to the view which was taken earlier in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] which was not cited before the Court in Govind Prakash [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] . The subsequent two judgments which were referred above also take the same view as in Umesh Kumar Nagpal[Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] . Mr Vikas Singh has drawn our attention to the judgment in SBIv. Somvir Singh [SBI v. Somvir Singh, (2007) 4 SCC 778 : (2007) 2 SCC (L&S) 92] where the 1998 Scheme has been considered.
9. In all the matters of compassionate appointment it must be noticed that it is basically a way out for the family which is financially in difficulties on account of the death of the breadearner. It is not an avenue for a regular employment as such. This is in fact an exception to the provisions under Article 16 of the Constitution. That being so, if an employer points out that the financial arrangement made for the family subsequent to the death of the employee is adequate, the members of the family cannot insist that one of them ought to be provided a comparable appointment. This being the principle which has been adopted all throughout, it is difficult for us to accept the submission made on behalf of the respondent." Now, it is in this background that it would be necessary to advert to the decision in Canara Bank (supra). A Scheme for compassionate appointment of 8 May 1993 was prevalent in Canara Bank when the employee died on duty in October 1998. Faced with the rejection of an application for compassionate appointment, the High Court was moved in a Writ Petition in which a learned Single Judge Page 11 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. issued a direction for reconsideration of the claim for appointment. During the pendency of the appeal before the Division Bench, the Scheme for compassionate appointment was replaced by a new Scheme providing for ex gratia in lieu of appointment. The main issue which fell for consideration before this Court was whether the subsequent Scheme which was formulated in 2005 providing for ex gratia payment would govern or whether the application would have to be disposed of on the basis of the earlier Scheme of 1993. It may be noted that the application for compassionate appointment in that case had been rejected on the ground that the family of the respondent was not in indigent circumstances, as required by the Scheme for compassionate appointment of 1993.
Dealing with the applicability of the subsequent Scheme, a Bench of two- Judges of this Court held, following the earlier decision in State Bank of India Vs. Jaspal Kaur11, that the cause of action to be considered for compassionate appointment arose when the earlier Scheme was in force. Hence, the claim could not be decided on the basis of the subsequent Scheme which 11 (2007) 9 SCC 571 provided only for the payment of ex gratia. Moreover, as a matter of fact, the subsequent scheme was superseded in 2014 by reviving the Scheme for the provision of compassionate appointment.
Hence, the issue which has been dealt with in Canara Bank (supra) is whether the application for grant of compassionate appointment could have been rejected on the basis of a scheme which had come into force after the date of submission of the application. That, as this Court observed, was the main question which fell for consideration. The Bench of two-Judges, however, also noted that it was urged on behalf of the appellant - Bank that the family of the respondent was in receipt of family pension. This, the Court held, was of no consequence in considering the application for compassionate appointment.
Learned senior counsel appearing on behalf of the appellants has sought to distinguish the above observations, in the judgment in Canara Bank (supra), by submitting that it is not the case of the State of Himachal Pradesh that mere receipt of family pension would disable an applicant from submitting an application for compassionate appointment or preclude consideration of the claim. On the contrary, the submission which is urged is that the Scheme requires consideration of all relevant sources of income and hence, receipt of family pension would be one of the criteria which would be taken into consideration in determining as to whether the family of the deceased employee is in indigent circumstances.
We find merit in this submission, for the simple reason, that it is in accord with the express terms of the Scheme of 18 January 1990, as modified by the State. The Scheme contemplates that payments which have been received on account of welfare measures provided by the State including family pension are to be taken into account. Plainly, the terms of the Scheme must be implemented.
For these reasons, we have come to the conclusion that the High Court was not justified, based on the decision in Govind Prakash Verma (supra) in issuing a direction to the State to act in a manner contrary to the express terms of the Scheme which require that the family pension received by the dependants of the deceased employee be taken into account.
That leads the Court to the next aspect of the matter relating to the fixation of an income slab. In our view, the fixation of an income slab is, in fact, a measure which dilutes the element of arbitrariness. While, undoubtedly, the facts of each individual case have to be borne in mind in taking a decision, Page 12 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. the fixation of an income slab subserves the purpose of bringing objectivity and uniformity in the process of decision making. The High Court was of the view that it was not open to the Finance Department to amend the Scheme. The circulars which are issued by the Finance Department cannot be construed to be an amendment of the policy. They are really clarificatory of the intent and purpose of the Scheme. The circulars are explanatory, since they are intended to guide the decision maker on the concept of indigency which is incorporated in the Scheme. In fact, as we have noted earlier, in the decision of this court in Shashank Goswami(supra), the Court was specifically dealing with a circular of the Comptroller and Auditor General of India which had imposed income limits respectively for Group 'B', 'C' and 'D' posts for the purpose of guiding the decision in the case of compassionate appointment. The fixation of income limits was not construed to be and is not an arbitrary exercise of power. However, what we find from the record of this case is that the income limit was fixed (as the High Court observed) on 29 September 2008 by the letter of the Finance Department. The income limit of Rs.1,00,000/- for a family of four persons has since been revised to Rs.1,50,000/- on 20 April 2011. Mr. P.S. Patwalia has, on instructions, stated before this Court that this ceiling has been reiterated on 27 July 2017. What should be the appropriate income criterion is undoubtedly a matter of policy for the State Government to determine. However, we would impress upon the State Government the need to periodically revise the income limits preferably at intervals of three years. Inflation and the increase in the cost of living have an important bearing on financial exigencies faced by families of serving as well as deceased employees. In fixing the income criteria for considering cases of compassionate appointment, it would be appropriate if the State revisits the income limit at periodic intervals, as we have indicated above. We clarify that it would be open to the State to revise the income limits at a frequency of less than three years, if the State is so advised.
Insofar as the individual facts pertaining to the respondent are concerned, it has emerged from the record that the Writ Petition before the High Court was instituted on 11 May 2015. The application for compassionate appointment was submitted on 8 May 2007. On 15 January 2008 the Additional Secretary had required that the amount realized by way of pension be included in the income statement of the family. The respondent waited thereafter for a period in excess of seven years to move a petition under Article 226 of the Constitution. In Umesh Kumar Nagpal (supra), this Court has emphasized that the basis of a scheme of compassionate appointment lies in the need of providing immediate assistance to the family of the deceased employee. This sense of immediacy is evidently lost by the delay on the part of the dependant in seeking compassionate appointment.
We are not impressed with the submission that delay should not be taken into account since Paragraph 8 of the Scheme contemplates that in a situation where all the dependant children of the deceased employee have yet to attain the age of majority, the time limit for submission of an application is extended until the first of the children attains the age of twenty one years. A case where each of the children is a minor falls in a different class altogether. This cannot be equated with a situation where a dependant of a deceased employee who was a major on the date of death fails to submit an application within a reasonable period of time from the death of the employee. This aspect of delay has been dealt with in other decisions of this Court, including State of J&K Vs. Sajad Ahmed Mir12 and Local Administration Department Vs. M. Selvanayagam13.
We see no reason or purpose in now directing the State to reconsider its decision in the case of the respondent which would only result in another round of fruitless litigation. In our view, the respondent is debarred from Page 13 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. seeking compassionate appointment by the delay as well as by the lapse of time which has taken place...."
The above citation has gone deep into the issues of criteria, assessment of retiral benefits, pension, etc and held that these are necessary factors for assessing the merits of the case for consideration of an appointment being done on compassionate grounds. Therefore the criteria adopted in respect of the various factors which go into laying down the assessment of indigency and need for compassion in an appointment as a welfare measure of the State are upheld and while the impugned order itself may not contain the details with regards to the same, it does not become ultra vires of any law as long as behind the said order there is a backing of reason even if contained in the minutes of the meeting of the DSC which the respondents have fairly produced before this Tribunal and argued in that regards in the Counter so filed.The citation of the ld applicant counsel of Chandra Singh vs State of Rajasthan dated 22/07/2003 first of all does not specifically concern compassionate appointment whereas the 2019 judgement of Shashi Kumar (supra) extracted above is wholly and solely on the subject matter of compassionate appointment and secondly the support being tried to be taken from the citation, qua the assessment of the legality of the order on the face of it is non-speaking on the face of it is hardly tenable because, the reasonability of any order has to Page 14 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. be assessed on the well settled principle that any action of the State has to be in conformity with law and has to satisfy the twin tests of having followed 'substantive due process of law' and 'procedural due process of law' (Hon Allahabad High Court, Rakesh Mahajan v State of UP& 4 Ors, judgement dated 04/12/2019), and failure to do so violates the Article 14 of the Constitution. In the present case the minutes very clearly disclose the marking criteria and the procedure therein followed in shortlisting the candidates given the 04 vacancies available. This is in full compliance of the afore stated principle inasmuch that the substantive nature in following the due process of law is taken care of as reflected in the detailed criteria adopted for shortlisting not one but 81 candidates. Hence the impugned order passes the test. Striking it down would be violative of this principle inasmuch that we know in detail as to the reasons why the said order was passed and recognise that it passes the twin tests referred to earlier in the case of lawful action of the State. Moreso it is also important to examine the veil so to say of the order is lifted (as also argued by the applicant in OA para 4 XXVI) and it is found on summoning the minutes of the said DSC meeting that the action taken by the State / Instrumentality of the State is done in a lawful manner following a certain due process.As regards the other citation by the ld applicant counsel of the Hon Apex Court in the matter Page 15 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. of Mukesh Kumar vs UoI dated 05/09/2007, it deals with the matter of compassionate appointment being rejected on grounds of delay by the CAT Chandigarh Bench inasmuch that it states in para-4 therein that -
" The appellant move the Central Administrative Tribunal by filing OA, which was rejected on the ground that there was inordinate delay of 15 years in filing the application.."
In the present instance, delay is not the issue and hence the facts of the case would not apply here. The other citations stated in the OA para 4 XXV and XXX are not very relevant inasmuch that the applicant is neither being made to suffer for no fault of his own as his case has been taken up on merits in an elaborate manner and the respondents are nowhere trying to take any advantage of any mistake of theirs. Further that the impugned order is appropriately in detail and once the details of the minutes of the DSC dated 26/10/2016 have been placed on record unfazed, there is no reason to labour the point of unreasoned order.
6.2 In fact, it would be well to further examine the issues of compassionate appointment it would be well to cite the matter ofState of Himachal Pradesh vs Parkash Chand on 17 January, 2019 Bench: H. Gupta, D.D Chandrachud 1 REPORTABLE Item No.8.28/3.4 in the Supreme Court of India civil appellate jurisdiction civil appeal no.977 of 2019 (arising out of SLP(C) No.28355 of 2016) State of Page 16 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. Himachal Pradesh and Anr. appellant(s) versus Parkash Chand respondent(s)in which the Hon Apex Court has held as under:
"...This appeal arises from a judgment of a Divison Bench of the High Court dated 6 October 2015. The father of the respondent who was working as a Peon in the Revenue Department of the State, died on 4 January 1997, while in service. On the date of the death of his father, the respondent was a minor. He attained the age of majority on 17 November 2002. The policy of compassionate appointment framed by the State of Himachal Pradesh, inter alia, contains a stipulation that where none of the children of a deceased government employee have attained the age of majority at the time of the death of the employee, an application can be submitted Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2019.01.25 on the attainment of the age of twenty one years by the 14:26:34 IST Reason: eldest child. This provision is contained in paragraph 8 of the policy dated 18 January 1990. The application submitted by the respondent upon attaining the age of majority was processed, but was eventually rejected on 25 April 2008 on the ground that the brother of the respondent is already in the service of the Himachal Pradesh Electricity Board. The fact that the brother of the respondent is employed with a State undertaking is not in dispute. In the writ petition before the High Court, the respondent urged that his brother was living separately and relied on a ration card and a certificate issued by the Pradhan of the Gram Panchayat. The fact that the brother was residing separately for seventeen years was admitted in the Writ Petition in the following terms: State Of Himachal Pradesh vs Parkash Chand on 17 January, 2019 Indian Kanoon -
http://indiankanoon.org/doc/180120814/ 1 ...Because the elder brother of the petitioner was living separately and no family member of the petitioner is in Govt./Semi Govt. service, which fact is clear from the certificate issued by the competent authority, copy of which is annexed herewith as AnnexureP7. The ration card of the family of the petitioner clearly shows that the elder brother of the petitioner is not residing with the petitioner, copy of ration card is annexed herewith as Annexure-P8. The Pradhan concerned has also certified that the elder brother of the petitioner is residing separately for the last 17 years, which fact is clear from the certificate, copy of which is annexed herewith as Annexure-P9. The respondent, in the reliefs which were sought in the petition under Article 226 of the Constitution, sought a direction for setting aside the letter of rejection dated 25 April 2008 and for his appointment as a Peon on compassionate grounds. The Policy framed by the State Government contains the following conditions of eligibility in paragrah 5(c): In all cases where one or more members of the family are already in government service or in employment of autonomous bodies/bodies/ boards/corporations etc. of the State/Central Government, employment assistance should not under any circumstances be provided to the second or third member of the family. In cases, however, where the widow of the deceased government servant represents or claims that her employed sons/daughters are not supporting her, the request of employment assistance should be considered only in respect of the widow. Even for allowing compassionate appointment to the widow in such cases the Page 17 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. opinion of the department of personnel, and Finance Department should specifically be sought and the matter finally decided by the Council of Ministers. In the batch of cases which has been disposed of by the High Court, one of the issues which were framed for decision was as follows:
(ix) In case one or more dependants of a deceased- employee is/are in service, though living separately, whether that can be made a ground to deny compassionate appointment to the other dependant of the deceased-employee? The policy contains a stipulation that where one or more persons of the family are already in the employment of the State Government or of autonomous bodies, Boards, Corporations, etc. of the State or the Central Government, employment assistance should not be provided to another member of the family. However, an exception is carved out in the case of the widow of the deceased government employee, if she claims that her employed children are not supporting her. Before allowing compassionate appointment, the opinion of the Department of Personnel and Finance Department is required to be sought and the matter is left to the ultimate decision of the Council of Ministers. The High Court while deciding issue (ix) has relied upon the decision of this Court in Govind Prakash Verma Vs. Life Insurance Corporation of India1 more specifically on the observation that the mere fact that the elder brother of the applicant was engaged in agricultural work and was also doing the work of a casual painter, would not be construed as gainful employment. This finding in Govind Prakash Verma is purely on the facts of that case and cannot be construed to be of any relevance to the present case. State Of Himachal Pradesh vs Parkash Chand on 17 January, 2019 Indian Kanoon -
http://indiankanoon.org/doc/180120814/ 2 The High Court has observed that the State should consider cases for appointment on compassionate basis by dealing with the applications submitted by sons, or as the case may be, daughters of deceased government employees, even though, one member of the family is engaged in the service of the government or an autonomous board or corporation. This direction of the judgment of the High Court virtually amounts to a mandamus to the State Government to disregard the terms which have been stipulated in paragraph 5(c) of its policy dated 18 January 1990. The policy contains a limited exception which is available only to a widow of a deceased employee 1 (2005) 10 SCC289 who seeks compassionate appointment even though one of the children of the deceased employee is gainfully employed with the State. The basis for this exception is to deal with cases where the widow is not being supported financially by her children. In the exercise of judicial review under Article 226 of the Constitution, it was not open to the High Court to re-write the terms of the policy. It is well-settled that compassionate appointment is not a matter of right, but must be governed by the terms on which the State lays down the policy of offering employment assistance to a member of the family of a deceased government employee. [Umesh Kumar Nagpal Vs. State of Haryana2, General Manager (D&PB) Vs. Kunti Tiwary3,Punjab National Bank Vs. Ashwani Kumar Teneja4, State Bank of India Vs. Somvir Singh5, Mumtaz YunusMulani Vs. State of Maharashtra6,Union of India Vs. Shashank Goswami7, State Bank of India Vs. Surya Narain Tripathi8 and Canara Bank Vs. M. Mahesh Kumar9] For the above reasons, we are of the view that the judgment of the High Court is unsustainable. The High Court has virtually re-written the terms of the policy 2 (1994) 4 SCC 138 3 (2004) 7 SCC 271 4 (2004) 7 SCC 265 5 (2007) 4 SCC 778 6 (2008) 11 SCC 384 7 (2012) 11 SCC 307 8 (2014) 15 SCC 739 9 (2015) 7 SCC 412 and has Page 18 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. issued a direction to the State to consider applications which do not fulfill the terms of the policy. This is impermissible. That apart, we find from the record that the father of the respondent died on 4 January 1997. Though the respondent applied on attaining majority, as permissible under the policy, the application was rejected on 25 April 2008. The Writ Petition was filed nearly two years and six months thereafter. Apart from stating that the elder brother of the respondent who was engaged in government service was living separately, there were no factual averments in support of the plea. In any event, as we have already held, the High Court was not justified in issuing a direction which would breach the policy framed by the State. For these reasons, we allow the appeal and set aside the directions issued by the High Court in its impugned judgment and order, as noted earlier. In consequence, the Writ Petition filed by the respondent shall stand rejected.
In fact it may be well to quote a citation of as late as 12 January 2022 of the Hon Rajasthan High Court in the matter of Smt. Shobha Devi vs JVVNL Jodhpur &Anr on 12 January, 2022wherein it has been held as under on a matter of compassionate appointment -
"..12. POSITION IN LAW:
12.1. Article 14 of the Constitution of India prohibits theState from denying any person equality before the law orequal protection of the laws. Article 16 is of application ofgeneral Rule of equality as laid down in Article 14 withspecial reference to opportunity for appointment andemployment under the State. Article 15(1) prohibitsdiscrimination on the ground of religion, race,ste, sexor place of birth. It is an extension of Article 14, whichexpresses application of principle of equality. Therefore,no citizen shall be discriminated on the grounds of race,caste, sex or place of birth religion. Article 16 takes itsroot from Article 14 and ensures equality of opportunityin matters of employment under the State. Therefore,the fundamental right to equality means that persons inlike situations under like circumstances should be treatedalike.
12.2. Article 14 of the Constitution of India ensuresequality among equals and its main object is to protectpersons similarly placed against discriminatory treatment.The equality before law guaranteed under Articles 14, 15and 16 is a constitutional admonition against both thelegislative and executive organs of the State, neither thelegislature nor the Rule making authority can make a lawor a Rule which is violative of these articles.
(i) Indian Bank v. Promila reported in (2020) 2 SCC
4. It is trite to emphasise, based on numerous judicialpronouncements of this Court, that compassionateappointment is not an alternative to the normal courseof appointment, and that there is no inherent right toseek compassionate appointment. The objective is onlyto provide solace and Page 19 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. succour to the family in difficulttimes and, thus, the relevancy is at that stage of timewhen the employee passes away.
20. We have to keep in mind the basic principlesapplicable to the cases of compassionate employmenti.e. succour being provided at the stage of unfortunatedemise, coupled with compassionate employment notbeing an alternate method of public employment. Ifthese factors are kept in mind, it would be noticed thatthe respondents had the wherewithal at the relevantstage of time, as per the norms, to deal with theunfortunate situation which they were faced with. Thus,looked under any Schemes, the respondents cannotclaim benefit, though, as clarified aforesaid, it is only therelevant Scheme prevalent on the date of demise of theemployee, which could have been considered to beapplicable, in view of the judgment of this Courtin Canara Bank [Canara Bank v. M. Mahesh Kumar,(2015) 7 SCC 412 : (2015) 2 SCC (L&S) 539] . It is notfor the courts to substitute a Scheme or add or subtractfrom the terms thereof in judicial review, as has beenrecently emphasised by this Court inState of H.P. v.Parkash Chand [State of H.P. v. Parkash Chand, (2019)4 SCC 285 : (2019) 1 SCC (L&S) 621] .
21. We may have sympathy with the respondents aboutthe predicament they faced on the demise of ShriJagdish Raj, but then sympathy alone cannot giveremedy to the respondents, more so when the relevantbenefits available to the respondents have been grantedby the appellant Bank and whenRespondent 1, herself,was in employment having monthly income above thebenchmark.
(ii) State of H.P. v. Parkash Chand reported in (2019) 4 SCC 285
10. In the exercise of judicial review under Article226 of the Constitution, it was not open to the HighCourt to rewrite the terms of the Policy. It is well settledthat compassionate appointment is not a matter of right,but must be governed by the terms on which the Statelays down the policy of offering employment assistanceto a member of the family of a deceased governmentemployee.
[Umesh Kumar Nagpal v. State of Haryana [UmeshKumar Nagpal v. State of Haryana, (1994) 4 SCC 138 :1994 SCC (L&S) 930] , SBI v. Kunti Tiwary [SBI v. KuntiTiwary, (2004) 7 SCC 271 : 2004 SCC (L&S)943] , Punjab National Bank v. Ashwini Kumar Taneja[Punjab National Bank v. Ashwini Kumar Taneja, (2004)7 SCC 265 : 2004 SCC (L&S) 938] , SBI v. Somvir Singh[SBI v. Somvir Singh, (2007) 4 SCC 778 :
(2007) 2 SCC(L&S) 92] , Mumtaz YunusMulani v. State ofMaharashtra [Mumtaz YunusMulani v. State ofMaharashtra, (2008) 11 SCC 384 : (2008) 2 SCC (L&S)1077] , Union of India v. Shashank Goswami [Union ofIndia v. Shashank Goswami, (2012)
11 SCC 307 :(2013) 1 SCC (L&S) 51] , SBI v. Surya Narain Tripathi[SBI v. Surya Narain Tripathi, (2014) 15 SCC 739 :(2015) 3 SCC (L&S) 689] and Canara Bank v. M.Mahesh Kumar [Canara Bank v. M. Mahesh Kumar,(2015) 7 SCC 412 : (2015) 2 SCC (L&S) 539] .
(iii) State Bank of India v. Somvir Singh reported in (2007) 4 SCC 778
7. Article 16(1) of the Constitution of India guaranteesto all its citizens equality of opportunity in mattersrelating to employment or appointment to any officeunder the State. Article 16(2) protects citizens Page 20 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. againstdiscrimination in respect of any employment or officeunder the State on grounds only of religion, race, caste,sex and descent. It is so well settled and needs norestatement at our end that appointment oncompassionate grounds is an exception carved out to thegeneral rule that recruitment to public services is to bemade in a transparent and accountable mannerproviding opportunity to all eligible persons to competeand participate in the selection process. Suchappointments are required to be made on the basis ofopen invitation of applications and merit. Dependants ofemployees died in harness do not have any special oradditional claim to public services other than the oneconferred, if any, by the employer.
8. In Umesh Kumar Nagpal v. State of Haryana [(1994)4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537]this Court held: (SCC pp. 139-40, para
2) "As a rule,appointments in the public services should be madestrictly on the basis of open invitation of applications andmerit. No other mode of appointment nor any otherconsideration is permissible. Neither the Governmentsnor the public authorities are at liberty to follow anyother procedure or relax the qualifications laid down bythe rules for the post. However, to this general rulewhich is to be followed strictly in every case, there aresome exceptions carved out in the interests of justiceand to meet certain contingencies. One such exception isin favour of the dependants of an employee dying inharness and leaving his family in penury and withoutany means of livelihood. In such cases, out of purehumanitarian consideration taking into consideration thefact that unless some source of livelihood is provided,the family would not be able to make both ends meet, aprovision is made in the rules to provide gainfulemployment to one of the dependants of the deceasedwho may be eligible for such employment. The wholeobject of granting compassionate employment is thus toenable the family to tide over the sudden crisis. Theobject is not to give a member of such family a postmuch less a post for post held by the deceased."
9. In Union Bank of India v. M.T. Latheesh [(2006) 7SCC 350 : 2006 SCC (L&S) 1646] this Court whiledealing with the similarquestion observed thatindiscriminate grant of employment on compassionategrounds would shut the door for employment to theever- growing population of unemployed youth.
Thus, the above citation along with a multitude of others cited above, well-nigh closes any further consideration of the matter of the applicant in light of the facts discussed earlier. Thus, there is no quarter available with us to justify an iota of applicant's claim for compassionate appointment. In the event, therefore, OA is liable to the dismissed and dismissed.
7. In summum bonumwe thus find that compassionate Page 21 of 22 CAT LUCKNOW BENCH O.A. NO.568 OF 2016/ Yogesh Kumar Tripathi Vs. U.O.I. appointment is a specific class in itself with regards to appointment and given the analysis heretofore, adequate grounds for striking down the impugned order are not available. Themaxim, dura lex sed lex also known as the Brocard law which simply means that "the law is harsh, but it is the law" applies here. Accordingly, the O.A. of the applicant cannot be allowed and stands dismissed.
8. No costs.
(Devendra Chaudhry) Member-A Girish/-
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