Chandan Kumar vs Union Of India & Ors

Dr. Sanjiv Kumar, Member (A)

This OA, under Section 19 of the AT Act, 1985 is filed seeking relief to quash the impugned orders/memorandums dated 06.03.2019, 29.03.2019 and 04.04.2019 passed by respondent No. 3 and direct the respondents to reconsider the claim of the applicant for his appointment on compassionate ground a fresh according to his educational qualification and his suitability and pass any other order and award cost.

The fact of the applicant is that the father of the applicant Bhim Prasad Passi was a permanent employee under the respondents and died in harness on 03.10.2016 leaving behind his wife Kispati Devi, sons Omkar Prasad, Chandan Kumar (the applicant) and Ravi Kumar. The elder son was living separately prior to death of his father and he had his own family to look after. After the death of father there was no source of livelihood and the family was in indigent condition and the mother of the applicant filed an affidavit on 07.10.2016 seeking appointment of the applicant on compassionate ground in order to mitigate financial hardship of the family. The applicant is duly qualified and he claim that the only assets of the family is 20 grams of jewellery of mother and there is no other movable or immovable property and the said jewellery was also sold to meet the financial needs of the family. The applicant further states that the respondents supplied a proforma application to be filled and the applicant provided all information in the said proforma application, however, the applicant has received the memorandum dated 06.03.2019, 29.03.2019 and 04.04.2019informing him that his name has not been considered for compassionate appointment. The applicant further points out that the said memorandum dated 06.03.2016 is of another candidate Shri Munindra Nath Rai and the rejection of his claim. This also shows non application of mind and rejection of his claim in an arbitrary manner. These communications dated 06.03.2019, 29.03.2019 and 04.04.2019 are cryptic in nature. No reasons have been assigned as to how the family has been found indigent and the communication does not mention as how many candidates were considered in the meeting held for compassionate appointment, and what were the comparative family status of those candidates who have been offered appointment, and where the applicant’s case stood in comparative merit. Hence, without giving any cogent reason the action of the respondents in rejecting the claim of the applicant is arbitrary and discriminatory, illegal and not sustainable in the law. Hence, the said impugned order should be set aside and respondents may be directed to consider the case of the applicant afresh.

Counter affidavit has been filed by the respondents wherein they state that Shri Bhim Prasad Passi expired on 03.10.2016 leaving behind his wife and three sons (one married and two unmarried). The eldest son is employed as Assistant Sub Inspector in SSB with monthly income of Rs. 42,603/- (December 2016), who supports his mother and brothers. The second son Shri Chandan Kumar (applicant) applied for compassionate appointment in IB. His case was considered in the meeting of compassionate appointment committee on 04.07.2018, and the committee did not recommend him for appointment as the family was not found indigent. While taking a decision in the case, the committee took into account the fact that the family has received a terminal benefit of Rs. 38,62,390/- and is receiving pension of Rs. 23,800/- per month + DR and had a gainfully employed eldest son who supported his mother and brothers. Hence, the decision of the compassionate appointment committee was correct and the same was conveyed to the applicant on 06.03.2019 and 29.03.2019. The case of the applicant was considered as per the instructions contained in DOPT OM dated 16.01.2013 which clearly underlined that 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. As the family of Shri Bhim Prasad Passi was not found in destitution as one member of the family was gainfully employed supporting others. Therefore, the case of the applicant was not recommended. The respondents rely on the judgment dated 04.05.1994 of Hon’ble Supreme Court in the case of Umesh Kumar Nagpal vs. State of Haryana and other reported in JT 1994 (3) SC 525 wherein it was held that offering compassionate appointment as a matter of course irrespective of financial condition of the family is legally impermissible. Hence, they argue that the OA is liable to be dismissed.

The applicant has filed rejoinder affidavit wherein he reiterate his case as in his OA and again stressed that the order communicated to them is nonspeaking and without application of mind. Hence, the same should be set aside and his case should be considered afresh.

The respondents have filed written arguments on 21.03.2023 where they have reiterated the fact of their counter affidavit and emphasized that as only 5% quota is fixed for appointment on compassionate ground. There are limited vacancies and candidates who have secured more marks than recommended for appointment on compassionate ground are considered. As for the principles laid down in the Hon’ble Supreme Court order in the case of Umesh Chandra Nagpal vs. State of Haryana (supra), Jagdish Prasad vs. State of Bihar – (1996) 1 SCC 301 and S. Mohan v vs. Government of T.N. – (1998) 9 SCC 485 the compassionate appointment cannot be claimed as a matter of right and it is to enable the penurious family of a deceased employee to tied over sudden financial crises which is non-existent in the case of the applicant.

But clearly on the facts, as perused in the impugned orders, it does not disclosed how they have assessed the candidature of the applicant based on their assets and liabilities and different criteria laid down by the DOPT OM on the scheme of compassionate appointment, and how many total number of candidates were considered by the concerned committee and where the applicant’s case stood vis-a-vis other competing applications. Hence, the orders impugned are quite cryptic and cannot be considered as speaking orders. There is no merit in the arguments of the respondents.

The case came for final hearing on 17.03.2023. Shri Manoj Kumar Dubey, learned counsel for the applicant and Shri Vidyapati Tripathi, learned counsel for the respondents were present. Both the parties were heard. I have gone through the records and rival contentions carefully.

The issue before me is whether the impugned order of the applicant, which are annexed at annexure Nos. 1, 2 and 3 dated 06.03.2019, 29.03.2019 and 04.04.2019 are speaking order and have contents which substantiates that there was application of mind before arriving at the decision by the committee. From the averments of the respondents, in the counter affidavit, it is gathered that the applicant family had received certain retiral benefits like Rs. 38,62,390/- as terminal benefits and pension of Rs. 23,800/- per month + DR and had a gainfully employed elder son supporting his mother and brothers and hence, the compassionate appointment of the applicant was not considered. But on simple perusal of the memorandum dated 06.03.2019 the only disclosure is following:-

“Please refer to your application dated 01.10.2016 regarding appointment of Shri Chandan Kumar S/o late Shri Bhim Prasad Passi, ex-ACIO-II/MT of SIB Varanasi (expired on 03.10.2016) in IB on compassionate grounds.

IB Hqrs., New Delhi has intimated that the case of Shri Munindra Nath Rai for compassionate appointment was considered by the compassionate Appointment Committee (CAC) which did not recommend him for appointment, as the family was not found indigent”.

Similarly, the memorandum dated 29.03.2019 discloses only following:-

“Please refere to our Memo of even no (1680-920) dated 06.03.2019 intimating that the case of Shri Chandan Kumar S/o late Shri Bhim Prasad Passi, ex-ACIO-II/MT of SIB Varanasi (expired on 03.10.2016) for compassionate appointment was considered by the compassionate appointment Committee (CAC) which did not recommend him for appointment, as the family was not found indigent.

IN the said memo, the name of Shri Munindra Nath Rai was mentioned inadvertently in place of Shri Chandan Kumar. The name (Munindra Nath Rai) mentioned in para 2 of the said memo may please be read as Shri Chandan Kumar.

Inconvenience caused is regretted”.

And memorandum dated 04.04.2019 discloses following:-

“Please refer to your application dated 26.03.2019 seeking information about suitability of appointment of Shri Chandan Kumar S/o late Bhim Prasad Passi, ex-ACIO-II/MT on compassionate ground in IB.

Vide SIB, Varanasi Memo No. V-1/Estt/CG/2016(1)-2761-1239 dated 29.03.2019 through which we had already conveyed the decision of IB Hqrs. that the case of Shri Chandan Kumar wasnot considered for compassionate appointment by the compassionate Appointment Committee (CAC), as the family was not found indigent.

This for information please”.

In these memorandums, which are the order communicated to the applicant, nothing is disclosed of how it is speaking order, how the decisions were arrived at, whereas, respondents themselves in the counter affidavit have filed the scheme of compassionate appointment annexed to the DOPT OM dated 16.01.2013 on consolidated instructions on compassionate appointment in which details of the scheme and based on the scheme the department assessed the comparative merit of all the cases placed before the committee and a comparative marking system is in place and clearly based on the 5% vacancies, committee comes to a conclusion who all came within the 5% available vacancies out of the direct recruitment vacancies and what is the cut off merit marks, and out of total number of applicant out of them how many were selected and where any individual applicant stands in the merit list and how the merit points on various criteria were assigned to the said candidates are mentioned. Ordinarily these information are given in the compassionate appointment rejection order, informing a prospective candidate for compassionate appointment. Such order constituted speaking order, and in such cases only one can easily infer that the order was with application of mind.

But as a simple perusal of the three orders impugned above, show that there was hardly any information contained therein, so one cannot find why the case of the individual applicant was rejected and where they stood in the comparative merit. Hence, clearly the order impugned required interference, as being non-speaking. Furthermore, in the memorandum dated 06.03.2019, someone named Shri Munindra Nath Rai for compassionate appointment was considered by the committee, which did not recommend him for compassionate appointment as the family was not found indigent is mentioned. Although, it is addressed to Shri Chandan Kumar (the applicant) and the first para reads about the case of Chandan Kumar, which shows extreme negligence on the part of authorities in handling the sensitive cases of compassionate appointment and further substantiates non application of mind in dealing with the case of the applicant. Considering these, I pass following order:

“The OA is allowed, setting aside the impugned orders dated 06.03.2019, 29.03.2019 and 04.04.2019 and directing the respondents to reconsider the case of the applicant afresh in the next compassionate appointment committee meeting and pass speaking order disclosing all necessary facts as discussed above for accepting or rejecting the claims of compassionate appointment case of the applicant. No costs.”