Manish Kumar Ojha vs Union Of India & Ors

Om Prakash VII, Member (J)

The present O.A. has been filed under Section 19 of the AT Act, with the following reliefs:-

a) To issue a direction in the nature of certiorari quashing the order dated 1.6.2017 passed by the respondent No. 4.

b) To issue a direction in the nature of certiorari quashing the order dated 30.12.2011 passed by the respondent No. 5.

c) To issue a direction to the respondent No. 3 to 5 to comply with the notice/ letter dated 12.9.2013 and 30.5.2012 issued by the respondent No. 1 relating to conducting an inquiry of the financial status of the applicant for deciding the claim of the applicant relating to compassionate appointment within a stipulated period.

d) To issue an order or direction may deem fit and proper in the facts and circumstances of the case.

e) To award the cost of the applicant.

The case in brief as unfolded in the O.A. is as follows:-

The father of the applicant was working as Senior Auditor in the respondent’s department and during the service, he died due to heart attack on 15.7.2011, leaving behind 8 persons, consisting of two sons, two daughter in laws, two grandsons, one granddaughter and widow dependent upon the deceased. After the death of his father, applicant applied for appointment on compassionate ground, which was rejected by the respondents vide order dated 30.12.2011. Applicant has challenged the same on the ground that no inquiry was conducted and the report dated 8.12.2011 is a false and manufactured document. Family of the deceased is dependent upon the pension and there is no other means of livelihood. The impugned order passed by the respondents authority is completely mechanical and without application of mind.

The case of the respondents as unfolded in the counter affidavit are as under:-

The case of the applicant for compassionate appointment was processed as per provisions contained in para 12(c) of DOP&T O.Ms. dated 9.10.1998 and 5.5.2003 and in terms of the guidelines contained in Ministry of Defence O.M. dated 9.3.2001. It is stated that appointment on compassionate ground can be made up to a maximum of 5% of vacancy falling under the direct recruitment quota in any Group C post on the recommendation of the Selection Committee constituted for the purpose. The case of the applicant was placed before the Board of Officers. The committee did not recommend the case of applicant for appointment on compassionate ground due to assets and liabilities left by the deceased. The mother of the applicant is receiving basic pension @ Rs. 33600/- + Admissible D.A. per month (total amount Rs. 37632/-). A welfare officer had visited the residence of deceased employee and collected the information provided by the applicant. All reports were placed before the Board of officers for consideration, which not recommended the case of applicant.

Rejoinder Reply has also been filed by the learned counsel for the applicant, in which he has reiterated the averments made in the O.A. and denied the contents of counter reply.

Thereafter, learned counsel for respondents has filed Supplementary counter reply reiterating the contents made in the counter Reply and further stated that the letter dated 1.6.2017, which is challenged in the O.A. is not an order, whereas it is an information given by the department under RTI.

Heard Shri Saket Pandey holding brief of Shri Udai Chandani, learned counsel for the applicant and Shri R.C. Sahu, learned counsel for respondents and perused the pleadings on record.

Learned counsel appearing for the applicant argues that after the death of his father, applicant has moved an application for compassionate appointment, giving the particulars required as per law to the authority concerned. Respondents, on the basis of false report, rejected the claim of the applicant for appointment on compassionate ground. To substantiate his argument, learned counsel for applicant refers to the Annexure No.A-6 as well as Annexure A-10. He further argues that no officer has gone to the residence of the applicant to inquire the matter and report dated 8.12.2011 is based on imagination. Information disclosed in this report is based on official information. Applicant had applied for compassionate appointment on the death of his father because the entire family of the deceased is in indigent condition. There was also some outstanding loan amount taken from the bank as well as from the private parties. Thus, referring to the aforesaid facts, he further argues that denial of compassionate appointment to the applicant is arbitrary. Mere receiving of the retiral dues by the dependent will not be sufficient to deprive the applicant from compassionate appointment. Delay in filing the O.A. has already been condoned by this Tribunal. Thus, prayer has been made to allow the O.A. and direct the respondents to decide the claim of applicant for compassionate appointment considering the financial status of the applicant afresh, within a stipulated period of time.

Learned counsel appearing for the respondents argued that a proper enquiry was conducted in the matter, in which it was found that applicant is not in indigent condition. To substantiate his argument, he refers to Annexure A-10 of the O.A. and argues that the report is based on concrete inquiry. Huge amount has been received by the family members as retiral benefits. Wife of the deceased employee is also receiving huge family pension. Family also possess immovable property. Thus, the department has rightly rejected the claim of the applicant for compassionate appointment. It was also argued that date of birth of deceased was 13.7.1955 and he died on 15.7.2011 at the age of 56 years. In the circumstances, applicant is not entitled to be appointed on compassionate ground. Learned counsel appearing for the respondents also placed reliance upon the law laid down by the Hon’ble Supreme Court in the case of Central Coalfields Limited through its Chairman and Managing Director & others Vs. Smt. Parden Oraon (Civil Appeal No. 897 of 2021 Arising out of Special Leave Petition (C) No. 10514 of 2020 decided on 9.4.2021.

I have considered the rival submissions made by the learned counsel for parties and gone through the entire record.

It is evident from the record that at the initial stage, one application was moved on behalf of the applicant on the death of deceased employee for compassionate appointment. There are total 8 number of dependents in the family. Wife of the deceased is receiving pension. Family of the deceased had also received an amount of Rs. 21,43,501/- after the death of deceased employee as death gratuity, GPF final balance, leave encashment, CGEIS. It is also evident from record that in the year 2017, another application was moved on behalf of the mother of the applicant, requesting from the competent authority to reconsider the matter again. It is also evident from record that vide O.M. dated 26.7.2012, issued by the DOP&T, a time limit of three years prescribed for considering cases of compassionate appointment has struck down. Thus, reconsideration of compassionate appointment of the applicant is possible. Department on the application of mother of the applicant moved in the year 2017 was of the opinion that since the family of the applicant does not come under the purview of indigent condition, have not considered the prayer made for compassionate appointment. Thus, has opined that reconsideration of compassionate appointment is not possible. Objective report submitted by the WelfareOfficer is reproduced below:-

Objective Report

In order to determine the financial condition of the family, the undersigned was directed vide No AN/I/823/Comp.Apptt dated 13.10.2011 to visit the residence of the family of deceased Late Sh. A K Ojha Ex.SA/8315897 who expired on 15.07.2011 while serving in this office of the PCDA(P) Alld.

Accordingly the undersigned visited the residence of the deceased on 21.10.2011 and after necessary enquiry from the family members of the deceased following facts have emerged.

Late Shri A K Ojha Ex. SA/8315897 had left behind his wife, two sons. Both are unemployed. The eldest son Shri Manish Ojha is Inter Mediate and the youngest son Shri Harish Ojha has done BA.

The family of the deceased has received the following death benefits:-

Death Gratuity

Rs. 10,00,000/-

GPF Final Balance

Rs. 6,79,307/-

Leave Encashment

Rs. 3,96,900/-

CGEIS

Rs. 67,294/-

Total

Rs. 21,43,501/-

The family has a house in village PuramuftiDistt. Kaushambi (UP) estimated cost of which is about 3 Lakh. The statement showing the details of immovable property. The widow is receiving family pension of Rs. 12560+ Dearness allowance near about Rs. 19000/- PM. However the family has got some liabilities such as CDA (P) co-operative loan of Rs. 2,55,000/- and loan taken form relatives (without interest) of Rs. 3,50,000/-

Thus in the light of terminal benefits received by the family of the deceased and assets and liabilities left by the deceased the financial condition of the family can not be viewed as indigent and, therefore the request of the family for compassionate appointment of her son does not fall within the ambit of compassionate appointment.

The proforma Part “A” is enclosed herewith duly filled and countersigned.

Dated: 08/12/2011

M K Srivastava

Asstt. CDA (P)

Welfare Officer”

Besides, perusal of the impugned order dated 30.12.2011 also shows that the amount of Rs.21,43,501/-received by the deceased family as terminal benefits and also the amount of pension received by the mother of the applicant was taken into consideration and merely on that basis, respondents have rejected the claim of the applicant for compassionate appointment. Hon’ble Apex Court has laid down in the case of Govind Prakash Verma Vs. Life Insurance Corporation of India and others reported in (2005) 10 SCC, 289, that “Scheme of compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased employee as benefit of service, which they get on the death of employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family has received such benefit.” Receipt of family pension and terminal benefits cannot be the sole ground for denying compassionate appointment, because if such principle is accepted, then no dependent of Central Govt. would get it.

In addition to that, it is also submitted that today we are living in a age of transparency. At least some particulars/details of those deserving cases ought to have been given, but there is no such details of comparative study was made between the applicant’s case vis-à-vis other applicants. The respondents have rejected the claim of the applicant for compassionate appointment only on the ground that family has received terminal benefits, which is not tenable in the eyes of law.

As far as case law relied upon by the learned counsel appearing for the respondents is concerned, in this case employee concerned was missing since 2002, representation for compassionate appointment was made in the year 2013. One family member of the missing employee was in Government job. The fact of the instant matter is entirely different from the fact of the case relied upon by the respondents. In the present matter, claim of the applicant for compassionate appointment was rejected in the year 2011 itself only on the basis of terminal benefits. No proper enquiry has been made. Thus, no benefit could be extended to the respondents on the basis of case law relied upon by them.

In view of the above, O.A. is allowed. The impugned orders dated 1.6.2017 and 30.12.2011 are quashed. Respondents are directed to reconsider the case of the applicant for appointment on compassionate ground afresh in the light of the observations made by the Hon’ble Apex Court in Govind Prakash Verma Vs. Life Insurance Corporation of India and others (supra) case and in accordance with relevant provisions/ guidelines. It is also observed that the order must contain the details such as number of vacancies in the year/years in which applicant’s case was considered, names of the candidates who were considered and their relative merit in the selection process. This exercise shall be completed within a period of 04 months from today.

No order as to costs.