Sanjay Kamthania vs Central Administrative Tribunal and Others

Heard learned counsel for the parties and perused the record.

The petitioner has prayed for a writ of certiorari quashing the judgment and order dated 27.2.1998 passed by the Central Administrative Tribunal, Allahabad by which claim of the petitioner for a direction to the respondents to give appointment to him on the post of Upper Division Clerk on compassionate ground has been rejected. He has further prayed for quashing of the orders dated 5.7.1993 and 22.8.1994 passed by the respondent authorities by which request of the petitioner''s mother for appointment on compassionate ground has been rejected. It is then prayed that respondents may also be directed to grant appointment to the petitioner as Upper Division Clerk on compassionate grounds in the Central Excise Department, Kanpur within a period to be specified by the Court.

The brief facts of the case are that petitioner''s father Sri R.S. Kamthania was working in substantive capacity on the post of Inspector in the Central Excise Department. He expired on 26.01.1992 leaving behind the petitioner, his elder brother and mother. The elder brother of the petitioner was employed as a clerk in Central Bank of India who is claimed to be living separately from his father, mother and the petitioner. The petitioner, in these circumstances, applied for appointment on compassionate ground in the department.

The contention of learned counsel for the petitioner is that "compassionate appointment" is offered by the department in accordance with office memorandum dated 30.6.1987. Relevant paragraph 4 of the said office memorandum regarding eligibility reads thus:

(a) Compassionate appointments can be made only against direct recruitment quota.

(b) Applicants for compassionate appointment should be appointed only if they are eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules.

(c) Departments are, however, competent to relax temporarily educational qualifications in the case of appointment at the lowest level i.e. Group ''C'' or LDC post, in exceptional circumstances where the condition of the family is very hard. Such relaxation will be permitted up to a period of two years beyond which no relaxation of educational qualifications will be admissible and also services of the persons concerned.

(d) Where a widow is appointed on compassionate ground to a Group-C or D post, she will be exempted from the recruitments of educational qualifications, provided the duties of the post can be satisfactorily performed without having......

(e) In deserving cases even where there is an earning member in the family, a son/daughter/near relative of the deceased Government servant, leaving his family in distress may be considered for appointment with the prior approval of the Secretary of the Department concerned, who before approving the appointment, will satisfy himself that the grant of concession is justified having regard to the number of dependent, the assets and liabilities left by the deceased Government servant, the income of the earning member as also his liabilities including the fact that the earning member is residing with the family of the deceased Government servant and whether he should not be a source of support to the other members of the family.

25.02.1992 An application on prescribed proforma was submitted on 25.02.1992 without any delay before the respondent- authorities on which the Administrative Officer of the Central Excise, Division Agra passed an order on 1.5.1992 that as ban has been imposed on the post of Inspector on compassionate ground, the petitioner may be considered for the appointment on Grade C & D post. Pursuant to that, petitioner filed another application on proforma for appointment to the post of Group C & D (U.D.C. & L.D.C.) which too was rejected on 20.07.1992 by the Assistant Collector (Pav) Central Excise, Kanpur allegedly without assigning any reason. Thereafter, petitioner''s mother moved an application on 14.12.1992 before the Chairman, Central Excise Board & Customs, New Delhi for appointment of her son-the petitioner. This application was also rejected on 5.7.1993. Aggrieved by the said order, the mother of the petitioner preferred an appeal to the President of India in this regard on 30.12.1993 which is said to be still pending.

By order dated 28.8.1994, the Collector, Central Excise Board also rejected the claim of the petitioner allegedly without assigning any reason which was challenged by the petitioner by filing Original Application No. 1396 of 1994 in which counter affidavit has been filed by the respondent-department wherein it has been averred that mother of the petitioner was paid all the benefits of the deceased employee and family was not living in cold penury.

The Central Administrative Tribunal, Allahabad by its order dated 27.2.1998, rejected the claim of the petitioner. It is the aforesaid judgment in O.A. No. 1396 of 1994 which is subject matter of challenge in the present Writ Petition No. 25226 of 1998: Sanjay Kamthania vs. Central Administrative Tribunal & Others.

The validity and correctness of the order dated 27.2.1998 impugned in the present writ petition is assailed by the counsel for the petitioner on the ground that it is based upon total mis-construction of the provision governing compassionate appointment; that the Central Administrative Tribunal has erroneously drawn adverse inference from the fact that the petitioner had initially applied seeking grant of compassionate appointment on the post of Inspector and subsequently applied for grant of compassionate appointment on the post of U.D.C; that in fact the first application seeking appointment on the post of Inspector was not for compassionate appointment, but due to ban on the posting of Inspector on compassionate ground the petitioner applied for U.D.C. post, hence the inference drawn by the Tribunal in this regard is misconceived which also erred in holding that it was not necessary to pass reasoned order rejecting application for grant of compassionate appointment. According to the petitioner this view of the Tribunal is wholly arbitrary and against article 14 of the Constitution of India.

is next contended by him that merely because mother of the petitioner received some monitory payment on account of death of her husband, it cannot be a ground for rejecting application of the petitioner for appointment on compassionate ground as some small payment cannot be substituted for appointment. It is lastly contended that factum of payment of terminal benefit and family pension upon the death of a person in service is a fact common in all cases of premature death of an employee before his retirement and the same cannot be a basis for rejecting the application for grant of compassionate appointment.

Learned counsel for the petitioner in support of his contention has relied upon paragraphs no. 4, 6 and 7 of a judgment reported in 2005 (10) SCC 289: Govind Prakash Verma Vs. Life Insurance Corporation of India & Others. These paragraphs are reproduced below for ready reference:

In pursuance of the said order an officer of LIC appears to have made some enquiry and submitted his report dated 27.4.2002. In the report, he repeats about the family pension which is being paid to the widow of the deceased and the amount which was received as terminal benefits admissible under the Rules. Thereafter, it is mentioned in the report that the elder brother of the complainant is engaged as a painter but he did not disclose his income. Earlier, it is mentioned that he had said that he was engaged in cultivation. The officer inferred that the employment of the elder son of the deceased was being concealed. He also observed that at some places the statement of the elder brother was contradictory. Ultimately, the officer deputed to make enquiries, comes to the conclusion: "Because of the contradictory nature of statements made by the elder son as also the facts mentioned above the appointment of Govind Prakash Verma on compassionate ground is not maintainable." It is a brief report containing the above conclusions. There is no report in regard to other factors which the learned Single Judge had indicated in his order, upon which also he was required to submit his report. There is specific mention of the case of the appellant in the order saying that the elder brother was engaged in cultivation and was living separately. But the officer who seems to have enquired into the matter, in pursuance of the order of the learned Single Judge, totally omitted to furnish any report on the points, indicated above, as required by the High Court. They seem to be obsessed by the fact that the widow of the deceased is getting family pension and some good amount was paid to them as terminal benefits. The learned Single Judge while passing the final order takes those factors into account, namely, the family pension and other amounts which had been received as terminal benefits of the service and it is said that since the authorities have arrived at certain findings it would not be appropriate to go into those matters, thus he accepted the same and dismissed the petitioner.

In our view, it was wholly irrelevant for the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according to the appellant, has now been reduced to half) and other amounts paid on account of terminal benefits under the Rules. The scheme of compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased employee as benefits of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules. So far as the question of gainful employment of the elder brother is concerned, we find that it had been given out that he has been engaged in cultivation. We hardly find that it could be considered as gainful employment if the family owns a piece of land and one of the members of the family cultivates the field. This statement is said to have been contradicted when it is said that the elder brother had stated that he works as a painter. This would not necessarily be a contradiction much less leading to the inference drawn that he was gainfully employed somewhere as a painter. He might be working in his field and might casually be getting work as painter also. Nothing has been indicated in the enquiry report as to where he was employed as a regular painter. The other aspects, on which the officer was required to make enquiries, have been conveniently omitted and not a whisper is found in the report submitted by the officer. In the above circumstances, in our view, the orders passed by the High Court are not sustainable. The respondents have wrongly refused compassionate appointment to the appellant. The inference of gainful employment of the elder brother could not be acted upon. The terminal benefits received by the widow and the family pension could not be taken into account.

In the result, the appeal is allowed and the orders passed by the High Court are set aside. The respondents on consideration of the request of the appellant for compassionate appointment, shall pass appropriate order in the light of the observations made above, within a period of three months from today.

He has then relied upon paragraphs no. 3 to 9 of the judgment passed in Civil Appeal No. 2206 of 2006: Local Administration Department & Another Vs. M. Salvanayagam @ Kumaravelu. Paragraphs 3 to 9 are reproduced below for ready reference:

After about five and a half years of his father''s death, the respondent passed the S.S.L.C. examination in April, 1993. And then, for the first time on July, 29, 1993, the respondent'' s mother made an application for his appointment on compassionate grounds. No action was possible on this application since the respondent was still a minor. Later on, another application was made for his appointment on compassionate grounds after 72 years and 6 months of the death of his father. Failing to get a favourable response to his application, he filed a Writ Petition before the High Court seeking appropriate directions to the concerned authorities. That Writ Petition was disposed of by a single Judge of the High Court with a direction to the authorities to consider his claim for appointment on compassionate grounds afresh and pass an order on his application within four months from the date of receipt of that order. This order (first in the series) passed by the High Court was followed by a contempt proceeding initiated against the authorities at the instance of the respondent but that is not relevant for the present and we need not go into that any further. Suffice to note that eventually, the Municipality rejected the respondent''vide s claim for compassionate appointment order dated 19.4.2000. He once again went to the High Court. A single Judge of the High Court, this time, rejected the Writ Petition. 3 Against the order passed by the single Judge, he filed an intra-court appeal which was allowed by judgment and order dated April 30, 2004, and the Municipality was given the direction to appoint the respondent within three months from the date of the order.

The appellants have now brought this matter to this Court.

In the order dated April 19, 2000, two reasons were assigned for rejecting the respondent''s claim for appointment on compassionate basis. First, on the death of Meenakshisundaram, his wife, the mother of the respondent did not make any request for appointment and this showed that the demise of the concerned employee had not caused a very serious financial crisis in the family. In this connection it was also stated that in case on the death of Meenakshisundaram, his wife had made a request for appointment on compassionate grounds, her application might have been considered giving 4 her relaxation of age and academic qualification. The second reason given for rejecting the respondents''claim was that following the death of Meenakshisundaram, the family was given Rs.26,674/-as terminal benefits besides family pension to the widow. Thus, the dependents of the deceased employee were not left completely without any financial resources.

The second reason given for not accepting the respondent''s claim was rejected outright by the Division Bench relying upon a decision of this Court in Balbir Kaur and Another Versus Steel Authority of India Ltd. and Others, AIR 2000 SC 1596. And on this score, the decision of the High Court cannot be faulted. But the Division Bench also disapproved the first reason assigned for rejecting the respondents''claim. It accepted the respondent''s explanation for her mother not applying for a job on the death of his father and held that could not be a ground for denying 5 appointment to him on compassionate basis. In this connection, the Division bench said: "So far as the first reasoning is concerned, at the time of death of father of the petitioner, the petitioner was just 11 years old. In the S.S.L.C., examination conducted in April, 1993, he came out successfully and made an application on 12-7-1993 for compassionate appointment. Thereafter, number of representations were sent to the Karaikal Municipality and this Court finds in one such representation dated 13-9-1996 (as found in the file produced by the Municipality), it has been stated as under, "My mother could not immediately seek for self employment, as she was suffering from anaemia and hypo tension. Though my family was really in harness (sic distress), my mother managed to maintain the family with the help of her pension amount and that of her earnings from attending menial works from house to house." This claim was made in fact three years prior to the filing of the first writ petition. In the affidavit filed in support of the present writ petition also in paragraph 2, a specific mention about this has been made. If that is so, obviously that was the reason as to why she did not apply for the job immediately after the death of her husband in the municipality, that is, due to bad health. In these circumstances, this Court does not find any substance in the first reasoning as well that the failure on the part of the mother of the appellant to apply immediately for appointment relaxing the relevant rules would show that then family was not in difficulties."

We think that the explanation given for the wife of the deceased not asking for employment is an after-thought and completely unacceptable. A person suffering from anaemia and low blood pressure will always greatly prefer the security and certainty of a regular job in the municipality which would be far more lucrative and far less taxing than doing menial work from house to house in an un organised way. But, apart from this, there is a far more basic flaw in the view taken by the Division Bench in that it is completely divorced from the object and purpose of the scheme of compassionate appointments. It has been said a number of times earlier but it needs to be recalled here that under the scheme of compassionate appointment, in case of an employee dying in harness one of his eligible dependents is given a job with the sole objective to provide immediate succour to the family which may suddenly find itself in dire straits as a result of the death of the bread winner. An appointment made many years after the death of the employee or without due consideration of the financial resources available to his/her dependents and the financial deprivation caused to the dependents as a result of his death, simply because the claimant happened to be one of the dependents of the deceased employee would be directly in conflict with Articles 14 & 16 of the Constitution and hence, quite bad and illegal. In dealing with cases of compassionate appointment, it is imperative to keep this vital aspect in mind.

Ideally, the appointment on compassionate basis should be made without any loss of time but having regard to the delays in the administrative process and several other relevant factors such as the number of already pending claims under the scheme and availability of vacancies etc. normally the appointment may come after several months or even after two to three years. It is not our intent, nor it is possible to lay down a rigid time limit within which appointment on compassionate grounds must be made but what needs to be emphasised is that such an appointment must have some bearing on the object of the scheme.

In this case the respondent was only 11 years old at the time of the death of his father. The first application for his appointment was made on July 2, 1993, even while he was a minor. Another application was made on his behalf on attaining majority after 7 years and 6 months of his father''s death. In such a case, the appointment cannot be said to sub-serve the basic object and purpose of the scheme. It would rather appear that on attaining majority he staked his claim on the basis that his father was an employee of the Municipality and he had died while in service. In the facts of the case, the municipal authorities were clearly right in holding that with whatever difficulty, the family of Meenakshisundaram had been able to tide over the first impact of his death. That being the position, the case of the respondent did not come

The next case upon which reliance has been placed by the petitioner is Sangam Kumar Shukla Vs. Union of India (UOI) and Others, ,. In paragraphs 5 to 9 of this judgment upon which petitioner has relied upon, it has been noticed by the Court that " the petitioner sought relief of compassionate appointment on the ground that his father while working on post of Auditor in the office of Controller of Defence Accounts (Central Command) died. The deceased had taken various loans during his illness, which had to be cleared. However, application for appointment on compassionate ground, moved by the petitioner was rejected on the ground that he was a married person aged about 35 years and that total terminal benefits and family pension is much more than take home pay of deceased. One of the ground for rejecting application of the petitioner was also that family possesses a house. The High Court found that age can be relaxed in the scheme of compassionate appointment and also that various other important factors were not considered while rejecting application for compassionate appointment in that case; that payment of terminal benefits to the family of the deceased are also not the only ground for rejection of application and that as family of deceased were dependant only on family pension and to have paid loan to the deceased were also to be considered by the department. It was in the aforesaid circumstances, the matter was remanded back by the High Court.

The last judgment upon which reliance has been placed by the petitioner is Rahul Tandon Vs. Regional Manager, Allahabad Bank and Others, , Allahabad Bank, Regional Office, Allahabad & Others. In paragraph 6 of this judgment, it has been held that " while considering the case of compassionate appointment, the competent authority is to address itself to the aspect of livelihood and a duty is enjoined on him to consider whether applicant has sufficient means of livelihood to pull on the family with human dignity. The aspect as to the right to life and to live with human dignity after the death of the sole bread earner, to all appearances, was the consideration, which evoked benefactory observation of the Apex Court in Balbir Kaur and Another v. Steel Authority of India Ltd. and Others 2000 (3) ESC 1618 (SC). In this case, the Apex Court being at its solicitous best observed that "the feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and at that juncture if some lump sum amount is made available with a compassionate appointment, the grief stricken family may find solace to the mental agony and manage its affairs in the normal course of events. In the ultimate analysis, it was quipped that it was not that monetary benefit would be replacement of the bread earner but that would undoubtedly bring some solace to the situation. The distillate of the above decision would appear to be that the lump sum amount alone received by the family of the deceased couldn''t be a substitute for employment to be offered to any eligible member of the family of the deceased in order to keep the pot of family boiling after the death of the sole bread earner."

In support of his case, learned counsel for the respondent has relied upon a judgment rendered in the case of Union of India & Anr. v. B. Kishore reported in J. T. 2011 (4) SC 77 wherein the Court held "that it is the first precondition for bringing the case under the scheme of "compassionate appointment". Scheme contemplates providing immediate succour to deceased employee''s family which on his demise faces financial crisis. If indigence is not considered for scheme of compassionate appointments, it would result in reservation in favour of the dependent which would be in conflict with the ideal of equality guaranteed under Articles 14 and 16 of the Constitution." The Court further held that " from the writ petition it appears that respondent was struggling for his financial upliftment, but was not an indigent who could be covered by the scheme formulated by O.M. dt. 9.10.1998 as it will not satisfy the purpose of scheme. Even otherwise, he is not entitled to compassionate appointment. In the verification appended to the O.A. before Tribunal, his age was shown as 58 years in June, 1998 and so he was 61 years old when High Court allowed his writ petition. He being beyond the age of superannuation, question of his appointment on compassionate grounds does not arise".

In another case upon which reliance has been placed by learned counsel for the respondent is Local Administration Department and Another Vs. M. Selvanayagam @ Kumaravelu, wherein the Court observed that first application made on 29.7.1993, when respondent was a minor and another application made after 7 years of death, when he attained majority.

Lastly learned counsel for the respondent has relied upon a judgment in the case of Eastern Coalfields Ltd. Vs. Anil Badyakar and Others, wherein the Court held that "compassionate appointment is not a vested right which can be exercised at any time in future. It cannot be claimed or offered after a lapse of time when crisis is over." The Court further held that "competent authority which was to grant post facto approval, cancelled it on the ground that appointment could not be given 12 years after death of employee."

After hearing learned counsel for the parties and perusal of record, it appears that admittedly, elder brother of the petitioner i.e. the elder son of the deceased was employed as clerk in Bank and it is alleged that he is living separately, but this cannot be the only a ground for granting compassionate appointment. Paragraph 4 (e) of the aforesaid memorandum deals with a situation where there is also an earning member in the family of the deceased Government servant i.e. a son/daughter/near relatives may be considered for appointment on compassionate ground with prior approval of the Secretary of the department concerned. It is mandatory upon the Secretary that before approving the appointment he will satisfy himself that grant of concession for compassionate appointment is justified having regard to the vacancy in the department in the year concerned; that assets and liability left by the deceased government servant, the income of the earning member (s) as also his liabilities including the fact that the earning member is residing with the family of the deceased government servant and whether he support the other member of the family or not. There is no averment anywhere made by the petitioner that elder brother was not supporting his family. Application was also not moved by the applicant for taking prior approval of the Secretary of the department concerned. Therefore, provision of paragraph 4 (e) of the memorandum dated 30.6.1987 was not complied by the petitioner. In the case of Sangam Kumar Shukla v. Union of India & others (supra), elder brother of the petitioner was employed as clerk in a nationalised bank. His earning was regular and, therefore, it cannot be said that family of deceased was in indigent circumstances. Particularly, when there is no averment to the effect that elder brother does not support his family. Merely, living at a different place would not be sufficient that family is not supported by elder brother. In view of this, it cannot be said that family of the petitioner was in indigent circumstances.

With regard to application of case of Sangal Kumar Shukla V. Union of India & others (supra), the case of Rahul Tandon v. Regional Manager, Allahabad Bank, Regional Office, Allahabad & others (supra) as well as Balbir Kaur and another v. Steel Authority of India Lotd. & others (supra) are also not applicable in the facts and circumstances of the present case.

So far as case of Govind Prakash Verma v. Life Insurance Corporation of India & Others in which upon paragraphs 4, 6 and 7 reliance has been placed is concerned, this case also will not apply in the facts and circumstances of the present case as in the case of Govind Prakash Verma v. Life Insurance Corporation of India & others (supra) the applicant was engaged in cultivation and in this case the Court come to the conclusion that there is no evidence that the applicant in that case was having regular income from painting. As regards terminal benefits paid to the petitioner, it was held by the Court that terminal benefits were insufficient to enable family of the deceased to come out in indigent circumstance. In the case of Local Administration Department & another v. M. Salvanayagam @ Kumaravelu (supra), the mother of the applicant moved application for compassionate appointment, but no action was possible as the applicant was minor. Two reasons were assigned for rejecting the respondent''s claim for appointment on compassionate ground i.e. death of government employee (deceased) who was bread earner on which his wife, the mother of the respondent did not make any request for appointment which showed that death of concerned employee had not caused a very serious crisis in the family. The second reason given for rejecting the respondent''s claim was that following the death of petitioner, the family was given Rs.26,674/-as terminal benefits. In that case, admittedly, mother of the deceased-workman did not apply for compassionate appointment and if it was done so, her application for relaxation of age could have been considered by the department.

The case laws cited by the petitioner are, therefore clearly distinguishable, whereas the judgments cited by learned counsel for the respondent support contention of the respondent. Moreover, the petition is liable to be dismissed for non-compliance of paragraph 4 (e) of the memorandum dated 30.6.1987.

For the reasons stated above, we are not inclined to interfere with the order impugned in the present writ petition. The writ petition is, accordingly, dismissed. No order as to costs.