Pushpa Devi And Ors vs Union Of India And Ors

This instant O.A. has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 praying for the following main relief:-

"(b) Quash and setting aside the impugned order dt. 06.11.15 with all other consequential benefits i.e. directing the respondents to consider the case of the applicants for compassionate appointment fairly in accordance with the relevant rules and instructions on the subject in the interest of justice."

The factual matrix of the case, as noticed from the records, is as under:-

2.1 The applicant No.1 is widow of deceased government employee, Mr. Chander  Ram,  who  was  working  as  Multi  Tasking  Staff  (MTS)  under respondent No.2 and died in harness on 05.01.2013. Applicant No.2 is son of applicant No.1 and late Mr. Chander Ram. Besides these applicants, late Mr. Chander Ram has left behind four other siblings (paragraph 4.1).

2.2 The  applicant  No.2  had  requested  the  respondents  to  grant  him compassionate appointment, which was not being considered, as a result of which he approached this Tribunal by filing O.A. No.1814/2014, which was disposed of vide order dated 06.10.2015 with the following directions to the respondents:-

"3. In view of their stand in the reply, the Original Application is disposed of with direction to the respondents to consider the case of the applicant for employment on compassionate grounds against first available vacancy within the ceiling limit, i.e., 5% of the vacancies in direct recruitment quota in Groups "C" and "D" categories. As far as the plea of the applicant regarding retention of government accommodation is concerned, it would be open to him to work out his claim in appropriate proceedings. No costs."

2.3 The applicant No.1 also requested the respondents to grant compassionate appointment to applicant No.2 (her son), which has been declined by the respondents vide impugned Annexure A-1 communication dated 06.11.2015, which reads as under:-

"I am directed to refer to the above subject and to say that the case of Sh. Prakash (S/o Late Sh. Chander Ram, Ex-MTS, O/o B.O.A., M/o L&E) for appointment on compassionate grounds in the Board of Arbitration under the Ministry of Labour & Employment can not be considered or acceded to at present as per the Hon"ble CAT"s directions and under the extant/applicable instructions of the Department of Personnel & Training, Govt. of India since there is no such available vacancy in the B.O.A. within the ceiling limit of 5% of vacancies in the Direct Recruitment quota in Gr. 'C' & 'D' categories at present. The matter will be considered as per the extant rules & instructions of Government in case requisite vacancy within the 5% ceiling limit under Direct Recruitment quota ever arises."

(emphasis supplied)

Aggrieved by the impugned Annexure A-1 communication, the applicants have filed the instant O.A. praying for the relief as indicated in paragraph (1) above.

Pursuant to the notices issued, the respondents entered appearance and filed their reply, to which a rejoinder was filed by the applicants.

With the completion of pleadings, the case was taken up for hearing the arguments on 03.04.2018. Arguments of Mr. U Srivastava, learned counsel for applicant and Mrs. Anupama Bansal, learned counsel for respondents were heard.

Mr. U Srivastava, learned counsel for applicant submitted that the sole ground of non-consideration of the case of applicant No.2 for the compassionate appointment by the respondents is that no vacancy is available within 5% ceiling limit under the direct recruitment quota. He stated that the Ministry of Labour & Employment, of which Board of Arbitration is an integral part, is small Ministry and hence the vacancies under 5% ceiling limit are not likely to arise in the foreseeable future. He further stated that in order to obviate such eventualities, the Department of Personnel & Training (DoPT), Government of India has issued an O.M. dated 09.10.2006 (pp. 28 & 29), according to which, a more liberalized method of calculation of vacancies under 5% quota for compassionate appointment has been prescribed. He particularly drew my attention to paragraph 4 of the said O.A., which is extracted below:-

"4. Accordingly, it has been decided that the small Ministries/Departments may apply a more liberalized method of calculation of vacancies under 5% quota for compassionate appointment. The small Ministries/Departments, for the purpose of these instructions, are defined as organizations where no vacancy for compassionate appointment could be located under 5% quota for the last 3 years. Such small Ministries/Departments may add up the total of DR vacancies in Group "C" and "D" posts (excluding technical posts) arising in each ear for 3 or more preceding years and calculate 5% of vacancies with reference to the grand total of vacancies of such years, for locating one vacancy for compassionate appointment was/has been made by the Ministries/Departments during 3 years or number of years taken over and above 3 years for locating one vacancy under 5% quota."

Mr. Srivastava further argued that the family condition of the applicants has become penurious in view of the fact that applicant No.1 has been detected with ovarian cancer, for which she is taking treatment; in support of which he placed on record a medical report of Dr. Lal Path Labs, New Delhi. He further submitted that Ministry of Defence (MoD), Govt. of India has issued O.M. dated 30.04.2015, a copy of which was also placed on record dealing with the case for compassionate appointment wherein the family of the appointment seeker is facing acute hardship. According to this O.M., such case is to be considered on priority basis.

Concluding his arguments, the learned counsel submitted that the applicants may be granted a liberty to submit a comprehensive representation to the respondents explaining therein their financial conditions as well as bringing to the notice of the respondents the DoPT O.M. dated 09.10.2006 and O.M. dated 30.04.2015 issued by the Ministry of Defence.

Per contra, Mrs. Anupama Bansal, learned counsel for respondents highlighted the averments made by the respondents, in their reply to paragraphs 5.5 to 5.11 of the O.A. Succinctly, the respondents in reply to these paragraphs, have stated that respondent No.2 had considered the case of applicant No.2 for compassionate appointment under 5% direct recruitment quota but could not grant him the compassionate appointment due to non-availability of vacancies under the 5% quota. It is further stated that respondent No.2 had consulted respondent No.1 in the matter and was advised as under:-

"(i) As per general practices adopted in this Ministry, attached and subordinate offices of the Ministry have filled the vacancies arisen in their offices by their respective offices. BOA is a subordinate office of the Ministry. BOA has its own recruitment rules for filling up the vacancies in BOA.

(ii) This Ministry is also facing difficulties in providing appointment to the near relatives of the employees who died in harness.

(iii) It may not be possible to accommodate candidates from attached and subordinate offices for appointment on compassionate grounds in the Ministry. The BOA may explore possibilities to accommodate Sh. Prakash on compassionate grounds in their office."

Mrs. Bansal stated that the Board of Arbitration - respondent No.2 is practically non-functional and is having a very small staff strength and hence there is no likelihood of occurrence of any vacancy in Groups "C" & "D" cadres under the 5% quota.

I have considered the arguments of learned counsel for the parties and have also perused the pleadings.

The sole reason why the applicant No.2"s case for compassionate appointment has not been considered is due to non-availability of vacancies under the 5% quota. Respondent No.2 has, in its reply, has clarified that since it is having a very small staff strength, there is no likelihood of occurrence of any vacancy in Groups "C" & "D" cadres under the 5% direct recruitment quota, against which applicant No.2 could be considered for the compassionate appointment. However, the DoPT, vide O.M. dated 09.10.2006, prescribes a more liberalized method of calculation of vacancies under the 5% quota for compassionate appointments in respect of Ministries / Departments, which are small in size. The case of applicant No.2 has not been considered by the respondents in accordance with this O.M. It is also to be appreciated that in view of the fact that the applicant No.1 is fighting with ovarian cancer for survival, the financial condition of the family of the deceased Chander Ram has further deteriorated, and hence on the lines of the Ministry of Defence, the Ministry of Labour & Employment (respondent No.1), should accord priority consideration to the case of applicant No.2 for the compassionate appointment.

The submission made by Mr. U Srivastava, learned counsel for applicants that the applicants may be permitted to file a comprehensive representation highlighting the DoPT O.M. dated 09.10.2006, MoD O.M. dated 30.04.2015 and the present financial condition of their family, worthy of consideration.

In the conspectus of discussions in the foregoing paragraphs, I dispose of this O.A. in the following terms:-

(i) The applicants are permitted to submit a comprehensive representation to the respondents highlighting therein the present financial condition of their family as also the reasons as to why their request deserves to be considered in terms of DoPT O.M. dated 09.10.2006 and MoD O.M. dated 30.04.2015, within four weeks from the date of receipt of a copy of this order.

(ii) The respondents are directed to grant sympathetic consideration to such representation of the applicants and dispose it of by way of passing a reasoned and speaking order within a period of two months from the date of receipt of the representation.

(iii) In case the applicants remain dissatisfied with the order to be passed by the respondents on their representation, they shall have liberty to take recourse to appropriate remedy, as available to them under law.

There shall be no order as to costs.