Femy Mathew vs Bharath Sanchar Nigam Ltd. & Ors

K.Haripal, Member J

The applicant is the daughter of late K.V.Mathew, who was a Telephone Mechanic under the respondents, who passed away on 24.08.2010 while in service. His wife had predeceased him on 26.05.2000. He has two girl children, and the applicant is the younger. On 05.03.2015, the applicant filed an application for compassionate ground appointment, which was rejected by Annexure-A2 order . Aggrieved by the same, she has moved this Tribunal seeking to set aside Annexure-A2 order and seeking a declaration that she is fully eligible and entitled for compassionate appointment and also for a direction to the 1st respondent to consider Annexure-A3 appeal, since the applicant claimed that she is entitled to get 15 more weightage points.

The applicant has produced Annexue-A1 compassionate ground appointment policy guidelines followed by the respondents. According to the applicant, her father was the sole earning member of the family. He died leaving his mother and two girl children, by the untime death of the father, they have been put to utter penury. But the respondents, while considering the application for compassionate appointment, did not take into account the real facts, weightage points applied are not in tune with the guidelines. If the guidelines were properly followed, more weightage points would have been given to her. The respondents had given her only 47 points which is irregular and illegal. As held by the Hon'ble Supreme Court in Canara Bank and another v. M.Mahesh Kumar [(2015) 7 SCC 412], terminal benefits should not have been taken into account. Similarly, against dependents factor she should have been awarded 20 points whereas only 10 points were given. Points granted towards family pension also is incorrect. She was given a family pension of only Rs.1911/-. Points were awarded taking into account the enhanced rate of family pension of Rs.4,650/-, which is illegal. According to the estimation of the applicant, she should have been awarded 59 points, whereas only 47 points were granted.

The respondents filed a detailed reply denying the contentions in the application. According to them, the scheme for compassionate ground appointment was evolved on the basis of Annexure-R1(a) instructions issued by the Department of Personnel and Training of the Ministry of Personnel, Public Grievances and Pension. Accordingly, Annexure-A1/R1(b) policy guidelines were issued by the BSNL. After issuing Annexue-R1(c), all applications for compassionate appointment are being monitored by the Corporate Office. Following the guidelines strictly, the applicant was awarded 47 points as it is provided that all the cases that receive 55 or more net points alone shall be treated as eligible for consideration by the Corporate Office, that the cases that receive net points below 55 shall be treated as non-indigent and rejected. Points were awarded following the guidelines for compassionate appointment. The complaint raised by the applicant against the award of points are baseless. Even though the revised family pension of the applicant is Rs.7,140+DA, only Rs.3,185/- was reckoned as the basic pension in the pre-revised scale without considering the DA factor. The allegation to the contrary are denied. The respondents are not aware of Annexue-A3 representation. Usually such appeals addressed to the CMD, BSNL are forwarded to the concerned circles for their comments. However, claims made by the applicant in the appeal cannot be considered in view of Annexure R1(b) guidelines. Even though her father had passed away on 24.08.2010, the application for compassionate appointment was filed on 05.03.2015, only after a lapse of 5 years, which indicates negligence on the part of the family, which alone is sufficient to reject the application. Weightage marks were given strictly in accordance with the policy guidelines.

I heard the counsel on both sides. The learned counsel for the applicant submitted that since the mother had predeceased the father, herself and her elder sister were brought up by the grandmother and they were depending on the income of the father. According to the learned counsel, the applicant should have been awarded 20 points against basic family pension. Similarly, the guidelines does not take care of the novel situation in the family of the applicant, where at her younger age both her parents were lost and herself and her elder sister had to depend upon the grandmother for their bringing up. Such aspects should have been taken care of by the guidelines. According to the learned counsel, in the absence of the widow, the daughter has applied and therefore 15 points should have been granted in this regard. She also found fault with for not reckoning the liabilities of the family. According to the learned counsel, the Welfare Officer did not discharge his duties properly. Therefore, they should have sent Annexue-A3 representation to the Chairman which is the responsibility of the respondents.

The learned Standing Counsel for the respondents pointed out that the applicant has not challenged Annexure-A1/R1(b) guidelines issued by the respondents. The weightage points were awarded strictly in accordance with the guidelines formulated by the respondents. It is not known as to how the family pension was shown as Rs.1,911/-. Moreover, there is absolutely no justification in moving an application seeking compassionate appointment after a lapse of 4 years and 9 months. According to the learned counsel, the applicant has no vested right for claiming compassionate appointment. He also relied on the decisions reported in Punjab State Power Corporation Limited and others v.Nirval Singh [(2019) 6 SCC 774], State of Himachal Pradesh and another v. Parkash Chand [(2019) 4 SCC 285], State of Himachal Pradesh and ors v. Shashi Kumar [MANU/SC/0081/2019], Union of India & Anr. v. Shashand Goswami & Anr.[(2012) SC 2294], Indian Bank and Others v. Promila and Another [(2020) 2 SCC 729], Government of India and Anr. v. P.Vendatesh [(2019) 15 SCC 613] and two unreported decisions of the High Court in OP(CAT) Nos.2486/2012 and 458/2010.

Right of a person to get appointed under the compassionate ground has been clearly stated by the authoritative pronouncements of the Apex Court and various High Courts. For getting appointment to a public post normally one should undergo the selection procedure prescribed under the Rules. But appointment under compassionate ground is an exception to the general Rule. Here the person aspiring to get appointed does not require to undergo any such rigorous procedure, nor the rules of reservation are applicable to them. Since it is an exception to the general Rules, it has to be strictly construed.

There was time when compassionate appointment was made as soon as an employee dies in harness. But over the years, the necessity of following uniform, transparent procedures have been understood and that was how scheme for compassionate ground appointments are insisted to be followed meticulously. On the basis of such policy decisions, the respondents are following Annexure-A1/R1(b) policy guidelines in the compassionate appointment in BSNL. It has also come out that they are following a uniform pattern all over the country, monitored by the Corporate Office and the duty of the local divisions is to collect the applications and to furnish necessary inputs facilitating appropriate decisions to be taken by the Corporate Office.

It is also the settled proposition that appointments under the compassionate ground scheme cannot be claimed as a matter of right. If a person has raised any claim, that has to be assessed in the light of the guidelines formulated by the organisation. As stated by the learned Standing Counsel, in Canara Bank v. Mahesh Kumar, quoted supra, the following factors have to be borne in mind while considering the claim for compassionate appointment:

(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.

(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.

iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.

(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts."

(emphasis supplied)

In other words, the initial look out of a Court or Tribunal is whether a governing scheme is in place in the department concerned; secondly, while processing the application, the scheme has been meticulously followed, whether any aspect highlighted by the aspirant has been left out and whether the authority has acted arbitrarily and in violation of the provisions.

As already noticed, the respondents have formulated a policy guideline, which is in vogue. Now the applicant wants to convince the Tribunal that weightage points were not applied in conformity with the guidelines. According to her, she was awarded only 47 points, whereas she would have obtained 59 points if the guidelines were meticulously followed.

After considering the materials made available before me, I find it difficult to subscribe to the contentions. The respondents had awarded 47 points to the applicant, despite the fact that she had moved such application after 4 years and 9 months of the death of her father. The demand for compassionate appointment cannot be made after such a lapse of time. In fact, the very purpose of the scheme is to tide over the financial difficulties experienced by the family due to the jerk created on the sudden demise of the breadwinner of the family. As held by the Supreme Court in Umesh Kumar Nagpal vs State Of Haryana [(1994) 4 SCC 138], 'the object of the scheme is not to give a member of a family a post on the death of the employee in harness, nor does it 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 if only it is satisfied that but for the provision of employment, the family will not be able to meet the crisis and that job is to be offered to the eligible member of the family. That is why it is held that such an application should be preferred without undue delay and has to be considered within a reasonable period of time. Here, the very delay in preferring the application is an aspect doubting the absolute necessity projected by the applicant.

Turning to the specific allegation that she should have been given 59 points also does not stand to reason. As seen from Annexue-A1, weightage positive points are classified into six, namely, dependent's weightage, basic family pension, left out service, applicant's weightage, terminal benefits including DCRG, GPF/EPF, leave encashment, CGEGIS/GSLI, LIC policies, ex-gratia payment etc., and accommodation. The applicant was given 47 points. As against dependent's weightage, she was awarded 20 points. The deceased is survived by two unmarried daughters, the applicant and her elder sister, so that five points each were given under item 1(a) and under 1(d), altogether 20 points. The basic family pension has been reckoned as Rs.3,185/- so that 10 points were awarded under the second head. According to the applicant, the basic pension was only Rs.1,911/- and she ought to have been given 20 points under that head. But as rightly pointed out, no supporting materials are available to say that the basic pension was Rs.1,911/-. The learned counsel also pointed out that even though revision of pension is made enhancing pension to Rs.7,140/- +DA, pension at pre-revised scale alone was taken into consideration.

The applicant's father had left out service of 10 years so that she was awarded 10 points under that head. The contention of the applicant that since her mother, that is the wife of Mathew, had predeceased him, she should have been awarded 15 points, does not stand to any rhyme or logic. Turning to terminal benefits, considering the fact that they were granted an amount of Rs.3,41,875/-, seven points were awarded in that head, which also is in tune with the policy guidelines in vogue.

There was also a contention that the liabilities of the applicant were not considered and deducted while applying the points for terminal benefits. But there is no provisions for the same. Annexure-R1(f) clearly rules out reckoning the liabilities for the purpose. Even otherwise, a perusal of points awardable against the terminal benefits would indicate that the scheme is formulated in such a manner following an inverted proportion. In other words, persons getting less terminal benefits can claim maximum points. When the amount of benefits goes up, there is progressive reduction in the points. All these are identified to determine the most eligible person on the basis of the weightage points system. That was why the learned Standing Counsel submitted that even if a person gets more than 60 points, ultimately he might not be selected for appointment since his claim has to be compared with other applicants who are more indigent. It has to be borne in mind that the number of vacancies is limited to 5% in the category of Group-C and D employees can be filled up under the scheme.

To sum up, the argument of the applicant that she should have been considered for appointment, that she is entitled to get 59 points etc. do not require serious consideration. After evaluating all aspects in its totality, it appears that the applicant is not entitled to get compassionate appointment. Absolutely nothing could be brought out to say that weightage points were awarded deviating from the policy guidelines.

In the result, the application is dismissed. No costs.

Dated 26th October, 2022