Central Administrative Tribunal - Allahabad
Unknown vs Union Of India Through Its Secretary on 24 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
*****
Orders reserved on 13.5.2016
Orders pronounced on 24.5.2016
Honble Mr. Justice Dinesh Gupta, Member (J)
O. A. No.330/00620/2014
Dinesh Chandra,
S/o late Baij Nath,
R/o Village Gaura,
P.O. Basi,
District Allahabad
Applicant
(By Advocate : Shri Ashok Kumar Singh)
Versus
1. Union of India through its Secretary,
Ministry of Defence, South Block,
New Delhi.
2. Principal, Controller of Defence Accounts (Pensions)
Draupadi Ghat, Allahabad-211014.
Respondents
(By Advocate : Shri Anil Kumar Singh)
O R D E R
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
i) To issue an order, direction quashing the impugned order dated 12.2.2014 passed by Respondent No.2.
ii) To issue an order, direction commanding the Respondents to consider the case of applicant for appointment on compassionate ground.
iii) To issue any order, direction or further orders which this Honble Court may deem fit and proper in the present facts and circumstances of this case.
iv) Award the costs of the petition.
2. Brief facts of the case leading to filing of this OA are as follows:-
2.1 The father of the applicant, being a permanent employee working on the post of Canteen Waiter, died on 25.4.2000 during the course of employment under Respondent no.2.
2.2 On 25.4.2000, the applicant having the educational qualification of High School and as per the Scheme for Compassionate appointment, 1998 issued by Department of Personnel and Training (Ministry of Personnel, Public Grievances and Pensions, Marriage of dependent son was not bar, applied for grant of appointment on compassionate ground.
2.3 The respondent no.2 rejected the claim of the applicant vide order dated 26.3.2003 on the ground that the constituted Committee did not recommend the case of the applicant on the ground of non-availability of vacancy.
2.4 According to the applicant, the aforesaid order dated 26.3.2003 was challenged before this Tribunal by means of Original Application No.811/2004 (Dinesh Chandra vs. Union of India and others). This Tribunal vide Order dated 20.9.2007 passed in the said OA, without adjudicating upon the merit of the case, directed the respondents to keep the case of the applicant on record for grant of compassionate appointment as and when the vacancy position and rules allow his compassionate appointment.
2.5 The applicant was under the hope that whenever the post available, he shall be called but it was not so happened. The counsel for the applicant sought information under RTI Act, 2005 with regard to subsisting vacancies under 5% quota to be filled up on compassionate ground, from respondent no.2 who in turn gave the required information vide letter dated 15.6.2012. The information provided vide letter dated 15.6.2012 reveals that subsisting vacancies under 5% quota to be filled up on compassionate ground till December 2009 were 34 vacancies and from 19.5.2008 to 1.6.2012, thirteen persons have been appointed on compassionate ground but the applicants case was never considered in pursuance of the judgement and Order dated 20.9.2007 passed by this Tribunal. While the applicant was having a continuous cause of action since he was facing financial destitution due to death of sole bread earner.
2.6 The applicant is having a brother (Umesh Chandra aged about 48 years) who is mentally retarded and whose responsibility is also on the shoulder of the applicant and as such the applicant and his brother was the responsibility of the father of the applicant (deceased employee).
2.7 Being aggrieved by inaction of the respondents in the matter of considering the case of the applicant for grant of compassionate appointment, the applicant filed another OA No.1230 of 2012 (Dinesh Chandra vs. Union of India and others), which was disposed of by this Tribunal vide Order dated 27.9.2012 with the direction to respondents/competent authority to consider the claim of the applicant and pass reasoned and speaking order in accordance with the terms as contained in Order passed in OA No.811/04.
2.8 In the Ist OA No.811/2004, the following directions were passed by this Tribunal:-
.......... there is no need for the Tribunal to interfere in this case. However, the department may keep the case of the applicant on record for grant of compassionate appointment, as and when the vacancy position and Rules allow his compassionate appointment. 2.9 The grievance of the applicant is that initially as per the recommendations of the constituted Committee, the respondent no.2 rejected the claim of the applicant on the ground of non-availability of vacancy and now when the vacancies are available, respondent no.2 has taken a new stand that married son of the deceased Govt. employee cannot be considered as dependent of the deceased Govt. employee in terms of DOP&T letter dated 30.5.2013.
2.10 According to the applicant, the new stand taken by the respondents is not permissible in law because the respondents could not have given effect to the DOP&T letter dated 30.5.2013 to the cases which are pending since 25.4.2000. Secondly, there is no ground for the respondent no.2 that the claim of the applicant is liable to be rejected on the ground of merit. Therefore, impugned order dated 12.2.2014 passed by respondent no.2 is ex facie illegal, arbitrary, unreasonable and unjustified in view of the facts and circumstances of this case.
2.11 So far as the financial condition of the applicant is concerned, after the death of the Govt. employee, i.e., father of the applicant, the applicant and his brother inherited 0.109 hectare piece of land (less than = bigha) by way of succession.
2.12 The Scheme for compassionate appointment of 1998 issued by the DOP&T is applicable in the case of the applicant as its paragraph no.2 deals with dependant family member.
2.13 When the respondents rejected the claim of the applicant for grant of appointment on compassionate ground, the applicant has left with no option except to file the present OA for redressal of his grievances.
3. Notices were issued to the respondents, who in turn, filed their counter affidavit in which they have stated that consequent upon demise of Shri Baij Nath, Bearer, A/c No.8329585 on 25.4.2000 while in service, the younger son Shri Dinesh Chandra vide his application dated 5.3.2001 applied for self-appointment on compassionate ground.
3.1 The application was duly considered as per the rules and the decision was notified vide office order No.AN/1/823/Comp Apptt/Vol-I dated 26.6.2003 in which it was explained that as per the provisions contained in Govt. of India, Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training) O.M. No.14014/6/94-Estt.(D) dated 9.10.1998 and O.M. No.14014/23/99-Estt.(D) dated 03.12.1999, the appointment on compassionate grounds can be made to a dependent family member of a Govt. servant dying in harness or who is retired on medical grounds to relieve the family of the Government servant concerned from financial destitution. These appointments can be made upto a maximum of 5% of vacancy falling under direct recruitment quota in any Group C or D post on the recommendation of selection committee constituted for the purpose.
3.2 While considering the request for appointment on compassionate grounds, the constituted committee takes into account the position regarding availability of vacancy for such appointment. It recommends appointment on compassionate grounds only in a really deserving case and only if vacancy meant for appointment on compassionate ground is available within a year that too within the ceiling of 5%. The constituted Committee reconsidered the case of Shri Dinesh Chandra (applicant) along with other similar cases on three consecutive occasions afresh, i.e., on 4.7.2002, 8.1.2003 and finally on 5.6.2003 but the same was not recommended for appointment on compassionate grounds due to non-availability of vacancy.
3.3 The competent authority after careful consideration of the facts of the case and with due regard to the Govt. orders holding that appointment on compassionate grounds can be made only if a vacancy is available for the purpose, accepted the recommendations made by the Board of Officers and the request of Shri Dinesh Chandra son of Shri Baij Nath for appointment on compassionate ground was disposed of vide order dated 26.6.2013, as rejected being more than one year old, as per provisions of DOP&T OM No.14014/23/99-Estt. (D) dated 3.12.1999.
3.4 Against the order dated 26.6.2003, the applicant moved before this Tribunal vide OA No.811/2014 which was disposed of vide its order dated 20.9.2007 holding that A perusal.................. there is no need for Tribunal to interfere in this case. However, the department may keep the case of the applicant on record for grant of compassionate appointment, as and when the vacancy position and rules allow his compassionate appointment. 3.5 The applicant submitted an application dated 18.10.2007 to the respondents mentioning this Tribunals Order dated 20.9.2007 passed in OA No.811/2004 and requested for grant of appointment on compassionate ground. This Tribunal decision dated 20.9.2007 was duly considered in the light of the rules for compassionate appointment and the decision thus arrived was communicated to the applicant vide Office letter dated 25.10.2007 in reference to his application dated 18.10.2007.
3.6 Later, the applicant filed another OA No.1230/2012 before this Tribunal seeking the relief from this Tribunal to issue an order/direction commanding the respondent (i.e. PCDA(P) Allahabad) to consider the case of the applicant for appointment on compassionate ground. Meanwhile, the applicants counsel had preferred an application dated 26.5.2012 seeking information under the RTI Act regarding number of vacancies (yearwise) under 5% quota fixed for appointment on compassionate ground and the appointments already made against these vacancies.
3.7 This Tribunal vide its Order dated 27.9.2012 disposed of the said OA with the direction to the respondents/competent authority to consider the claim of the applicant and to pass reasoned and speaking order in accordance with the terms as contained in OA No.811/2004.
3.8 In view of the above directions of this Tribunal and also in regard to CGDA, Delhi Cantt. Important Circular No.AN/VIII/19001/Circular dated 11.12.2012 under which it was directed that cases, which have been closed for want of vacancy, could be considered again if the dependent of deceased Government servant prefer fresh application for compassionate appointment, the competent authority constituted a Board of Officers consisting of a Chairman and two Members for reconsidering the case of the applicant. The Board of Officers after taking all aspects into consideration did not recommend the case of the applicant for compassionate appointment in terms of provisions as contained in Sl. No.13 of DOP&T OM No.14014/02/2012-Estt (D) dated 30.5.2013, according to which, a married son is not considered dependent on Government servant. The competent authority after considering the recommendation of the Board of Officers, directions of this Tribunal, adequately deliberating the facts and circumstances of the case with due application of the provisions governing the grant of compassionate appointment, has come to the conclusion that the compassionate appointment could not be granted to the applicant because applicant is married and married son is not considered dependent on a Government servant in terms of DOP&T letter dated 30.5.2014. The claim of the applicant for compassionate appointment was not accepted and the case was finally closed. The decision of the competent authority in the case was notified vide office order No.AN/I/823/COMP. Appt./Vol.I dated 12.2.2014. The applicant has challenged the validity of order dated 12.2.2014 of respondents before this Tribunal by filing the present OA specifically with regard to the position that married son is not considered dependent on a Government servant.
4. The applicant has filed his rejoinder reiterating the contentions raised in the OA.
5. Heard Shri Ashok Kumar Singh, learned counsel for the applicant and Shri Anil Kumar Singh, learned counsel for the respondents and also perused the material placed on record.
6. Counsel for the applicant submitted that father of the applicant expired in the year 2000 and the applicant applied for grant of compassionate appointment according to the rules applicable at that time and at that time, there was no distinction between married and unmarried son for grant of appointment on compassionate ground. It was only in the year 2013, the Department of Personnel and Training (DOP&T) issued guidelines in which it was held that married son is not eligible for grant of appointment on compassionate ground. However, again in the year 2015, the DOP&T clarified the factual position and stated that the married son can be considered for appointment on compassionate ground. Hence, the rejection of the applicants claim on the ground of marital status of the applicant is against the law and the same deserves to be quashed.
7. Counsel for the respondents submitted that the case of the applicant was re-considered twice in pursuance of the directions issued by this Tribunal and the case of the applicant was rejected since he was a married son and as such he was not dependent on the deceased Govt. employee at the time of death of his father.
8. After careful consideration of rival contentions of the parties, I am unable to accept the contention of the learned counsel for the respondents. This Tribunal is constrained to observe that this is the third round of litigation in which after the death of his father, the applicant is pursuing his case continuously for grant of appointment on compassionate ground. His first application was turned down on the ground of lack of vacancy and on the second round, he was not considered on the ground of his marital status. As per the provisions of Scheme for grant of Compassionate Appointment circulated by the DOP&T vide OM dated 9.10.1998, the dependent family members eligible for compassionate appointment have been listed as follows:-
a. Spouse or b. son (including adopted son) or xxx xxx xxx xxx It has been further clarified in the revised Scheme circulated in the year 2007 that the son including adopted son on the above line has been included in the definition for the purpose of compassionate appointment. Giving this position, it is clear that in both the Schemes of 1998 and 2007, there is no debarment of married son for consideration for grant of appointment on compassionate ground subject to fulfilment of the conditions as applicable in the Scheme. It is true that in the clarification issued by the DOP&T vide OM dated 18.5.2010, it was clarified that under the compassionate appointment Scheme, son/daughter should be unmarried at the time of his or her appointment. However, the case of the applicant will not fall in the light of the clarification dated 18.5.2010 as the subsequent clarification cannot override the provisions of the earlier Scheme which has been circulated by the Department. In considering the case on compassionate ground, the respondents are governed by the provisions contained in the Scheme circulated by the DOP&T at the relevant point of time. As per the Scheme circulated in the year 1998, in the definition of dependents, only son including adopted son has been incorporated to be eligible for grant of compassionate appointment. It is also not disputed that in the year 2010, in response to the reference made by the Department, it was clarified that married son of deceased Govt. employee is not eligible for appointment on compassionate ground. However, in the answers contained to the frequently asked questions, the Department vide letter dated 30.5.2013 also clarified that married sons are not eligible for appointment. It is worth mentioning that father of the applicant died in the year 2000 and hence, the case of the applicant is required to be considered as per the provisions of the Scheme for compassionate appointment circulated in the year 1998 and according to which in the definition of dependent, only son including adopted son has been incorporated and no distinction has been made between married and unmarried son. In the absence of any such distinction, it is to be inferred that both married and unmarried son are eligible for appointment on compassionate ground subject to fulfilment of other conditions as envisaged in the Scheme. The Single Bench of this Tribunal in OA No.1042/2012 (Ripu Daman Singh vs. Union of India and others) vide its Order dated 7.4.2015 also took the same view. It is further pointed out that in the year 2015, again a clarification was issued to the frequently asked questions by the DOP&T clarifying that married son can be considered for appointment on compassionate ground if he fulfils all other requirements of the scheme.
9. In the Writ Petition No.908/2015 (Nagendra Kumar Yadav vs. Food Corporation of India and others) reported in 2016 Lab IC 1541, the Honble High Court of Chhattisgarh at Bilaspur observed as follows:-
19. It is well settled that marriage is an institution/sacred union not only legally permissible but also basic civil right of a man and woman. One of the most important inevitable consequences of marriage is the reciprocal support and marriage is an institution has great legal significance. Right to marry is necessary concomitant of right to life guaranteed under Article 21 of the Constitution of India as right to life includes right to lead a healthy life. Marriage does not bring about a severance of the relationship between a father and mother and their son or between parents and their daughter. These relationships are not governed or defined by marital status.
20. Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical Union. When two souls thus unite, a new soul comes into existence. That is how, the life goes on and on, on this planet. (See Mr. 'X' v. Hospital 'Z' MANU/SC/0733/1998 : (1998) 8 SCC 296.)
21. In the matter of Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755. Their Lordships of the Supreme Court have clearly held that marriage is one of the basic civil rights of man/woman and observed pertinently in paragraphs 24 & 25 as under:-
"24. Marriage is often described as one of the basic civil rights of man/woman, which is voluntarily undertaken by the parties in public in a formal way, and once concluded, recognizes the parties as husband and wife. Three elements of common law marriage are (1) agreement to be married (2) living together as husband and wife, (3) holding out to the public that they are married. Sharing a common household and duty to live together form part of the Consortium Omnis Vitae which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other. One of the most important invariable consequences of marriage is the reciprocal support and the responsibility of maintenance of the common household, jointly and severally. Marriage is an institution has great legal significance and various obligations and duties flow out of marital relationship, as per law, in the matter of inheritance of property, succession ship, etc. Marriage, therefore, involves legal requirements of formality, publicity, exclusivity and all the legal consequences flow out of that relationship.
25. Marriages in India take place either following the personal Law of the Religion to which a party is belonged or following the provisions of the Special Marriage Act. Marriage, as per the Common Law, constitutes a contract between a man and a women, in which the parties undertake to live together and support each other. Marriage, as a concept, is also nationally and internationally recognized. O'Regan, J., in Dawood v. Minister of Home Affairs (2000) 3 SA 936 (CC) noted as follows:
"Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well. The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends...."
22. Time and again, Their Lordships of the Supreme Court in umpteen number of cases repeatedly emphasized the need of compassionate appointment to the dependent of the deceased Government servant expeditiously. The whole object of granting compassionate appointment is to enable the bereaved member of the deceased Government servant to earn both the ends. Therefore, whether or not the son of the deceased Government servant should be granted compassionate appointment is to be decided with reference to the fact that whether on consideration of all relevant facts and circumstances, he or she is dependent on the deceased FCI servant excluding purely on the ground of marriage is absolutely impermissible in law. The yardstick for extending the benefit of compassionate appointment should be dependency of the dependents on the deceased FCI servant. Marital status of the dependent should not be an impediment for his/her consideration on compassionate ground, as the object of such an appointment is to wipe-out his tears from the eyes of the suffering family on account of loss of sole breadwinner in the family, other consideration would defeat the object of the social welfare benefit which the Union of India has framed to see that deceased family survives after the death of FCI servant. Though the policy of the Central Government was accepted by the FCI, the policy does not contain any such prohibition that married son is not entitled for compassionate appointment, but frequently asked questions which are claimed to be the policy is not in accordance with law. It has been assumed that on account of marriage, son ceases to be dependent on the FCI servant which is an erroneous approach on the part of the respondents. It cannot be assumed without examining the facts and without taking into consideration the attendant circumstances that married son is not dependent on the Government servant. In a given situation, son even after marriage may not be earning and may be fully dependent upon the earnings of his father. Therefore, the assumption that once one is married, he becomes no longer dependent on his father is an incorrect proposition, and it cannot be accepted, as such, denial of compassionate appointment to the son of the deceased FCI employee on the ground of his marriage is violative of Articles 14 and 15 of the Constitution of India.
10. In the result, for the foregoing reasons, the OA deserves to be allowed and the impugned order dated 12.2.2014 passed by the respondents is liable to be quashed. Accordingly, the OA is allowed and the impugned order dated 12.2.2014 is quashed and set aside. The respondents are directed to reconsider the case of the applicant, ignoring the fact that he is a married son, for appointment on compassionate ground, if he otherwise fulfils the conditions specified in the Scheme and communicate their decision by passing reasoned and speaking order to the applicant within a period of three months from the date of receipt of certified copy of this Order. There shall be no order as to costs.
(Justice Dinesh Gupta) Member (J) /ravi/ 17