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Judgment
K. Haripal, Member J
Applicant is the widow of late Shri.T.T.Vijayan who was a Track Maintainer in the Southern Railway. He passed away on 26.9.2018 in harness. On 6.11.2020, the applicant filed an application requesting for appointment on compassionate grounds for her son Sri.Jineesh. By Annexure A-3 order, her application was rejected and aggrieved by the same, this Original Application has been filed for quashing Annexure A-3 and to direct the respondents to reconsider the claim of her son Jineesh for compassionate appointment.
According to the applicant, her husband was the sole breadwinner of the family consisting of herself and her two children. Her daughter was married in 2007, but she is staying with her due to some matrimonial disharmony. Even though her son Jineesh is also married, is not having any permanent source of livelihood. Both the children were depending on the income of the husband; the husband had died after prolonged treatment for cancer, but Annexure A-3 was passed ignoring the ground realities and financial situation of the family and also the huge expenses incurred by them for the treatment of the husband. At the time of death of husband, Jineesh had not passed SSLC, he acquired the qualification in November 2019. The fact of short term of service remaining to the husband is not a valid ground for rejecting an application for compassionate appointment. They belong to Paraya community and are in the lowest strata of the society. It is illegal that the application for compassionate appointment was rejected without analyzing actual facts.
The respondents filed a reply statement contending that Shri.Vijayan had expired on 26.9.2018 leaving only 5 months service. His normal date of retirement was on 28.2.2019. His family consisted of wife and two children and both the children were married. On getting the application for compassionate appointment, the details were considered by the 2nd respondent. Her daughter was married on 9.4.2007, son Jineesh had acquired 10th equivalency qualification in November 2019 only, after the death of the employee. The son was also married and had a child of two years at the time of death of Shri.Vijayan. The claim that both the children were residing together depending on the income of her late husband is denied. Her son is 39 years old and was already supporting the family consisting of his wife and a child of two years. Both the children were not depending on the income of the father.
The contention that he was suffering from cancer for long period, that huge amounts were incurred for treatment etc. have been denied. Annexure A-2 application indicates that he had died due to breathing problem. At the time of enquiry by the Assistant Personnel Officer, it was revealed that the family has no liability to be paid off. The applicant is being paid a family pension of Rs.19,300/- with a dearness relief at 38% of Rs.7334/- per month. Moreover, the family was also paid an amount of Rs.16,88,608/- at the time of death. Moreover, relying on Annexure R-1 judgment of the Hon'ble High Court in OP(CAT) No.35/2017 Smt.K.K.Sushama v. The General Manager, Southern Railway and Others, it is pointed out that sons of the deceased employee who are 30 years old and above cannot be treated as depending on their father. So the Original Application is sought to be dismissed.
The applicant filed a rejoinder contending that the fact that Shri.T.T.Vijayan had only 5 months left for retirement, has no relevance. Her son, even though married before the death of father is not having any permanent job or livelihood. He used to do manual odd jobs. He is depending on the applicant for livelihood of his family. Due to the hard nature of manual work of Track Maintainer, her husband frequently became sick and died due to breathlessness at the age of 59 years. His early death was due to occupational hazards. In the 7th Central Pay Commission report, since a minimum educational qualification has been fixed, her son acquired matriculation for submitting the application on 6.11.2020. Acquiring such a qualification cannot be a reason for his dis qualification. Only the Staff Welfare Inspector had visited her house and no enquiry was held at the level of Assistant Personnel Officer. Enhanced family pension being paid will be ceased after 7 years of date of death of the deceased employee. If the husband has survived up to the date of superannuation, he might have received more amounts than what was paid by the respondents. The respondents also took note of the fact that they belong to Scheduled Caste community and was exempted from the creamy layer scheme for deciding income eligibility limit.
Counsel on both sides were heard and perused the records.
The husband of the applicant Shri.T.T.Vijayan had passed away on 26.9.2018 at the age of 59 years, leaving 5 months service. He left behind the applicant - the widow and two children, son Sri.Jineesh and daughter Smt.Jinita. It is not disputed that the daughter was given away in marriage in 2007, about 10 years prior to the death of Shri.Vijayan. Son Sri.Jineesh also was married and had a two year old child at the time of demise of his father. Obviously, at the time of death, the son did not possess necessary minimum educational qualification for applying for a post under the compassionate appointment scheme and thus, they waited for about two years and filed Annexure A-2 application for employment assistance under the compassionate ground appointment scheme on 6.11.2020. That has been rejected by Annexure A-3.
It is the settled proposition of law that appointment under the compassionate ground appointment scheme is not a regular mode of appointment, but is a special scheme with the intention of granting employment assistance to the deserved member of the family of a government servant who died in harness, to facilitate them to tide over the financial crisis occurred due to the sudden demise of the breadwinner of the family. It is a concession granted by the employer to a deserving family. It is an exemption to the general mode of employment and provisions of reservation, selection etc are not applicable. When it is an exemption to the general rule, it has to be strictly construed.
In Umesh Kumar Nagpal v. State of Haryana [(1994) 4 SCC 138], the object and purport of compassionate appointment has been stated by the Hon'ble Supreme Court as follows:-
“...... The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of 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...... ”
The date of birth of the son of the applicant is 22.3.1981 and he was more than 37 ½ years old at the time of death of the father. Indisputably, at that time he was already married and was the father of a two year old child. Normally it cannot be assumed that a youth or an youngster with no source of income would enter in a marital relationship, depending on the income of the parents. Therefore, it is only a matter of presumption that he had independent source of income at the time of death of the father. It is here that the judgment of the Hon'ble High Court of Kerala at Annexure R-1 assumes relevance, wherein it has been stated that a son who is more than 30 years cannot be assumed to be dependent on the father. Here, worsening the case of the applicant the added situation is that the son was married and was the father of a two year old child.
It has also come out from Annexure A-3 that the order was passed after making evaluation of the family circumstances, liabilities, if any etc. The applicant wanted to say that Shri.T.T.Vijayan had died of Cancer, he was undergoing prolonged treatment and on account of the same, family had incurred huge liabilities etc. But Annexure A-2, their own application indicates that he had died due to breathing problems. When this contention of the applicant was confronted in the reply statement, though a rejoinder was filed, it is not stated that he had died of Cancer or had undergone prolonged treatment etc. Moreover, particulars are lacking regarding such treatment. Details of liabilities, if any, incurred due to such treatment are also wanting.
It is true that the fact that the husband of the applicant had only five months service left, the son had acquired qualification only after the demise, are not good grounds for rejecting the request. The moot question is whether the family deserved employment assistance for tiding over the crisis. After evaluating the materials placed before the Tribunal, I am not persuaded to uphold the contentions of the applicant. There is absolutely nothing to say that the family had any compelling necessity to bank upon employment assistance. If there was any such necessity, they would have moved immediately after the demise. That was not done. But they waited and tried for acquiring the minimum educational qualification for the son and then moved the respondents seeking employment assistance. The reasons stated for canvassing compassionate ground appointment are rather feeble.
Resultantly, the Original Application is devoid of merit and is accordingly dismissed. No costs.