Shiv Kumar vs Union Of India And Ors

In this OA, the applicant was initially seeking the following reliefs:-

"(a) direct the respondents for considering of representation/legal notice dated 29.08.2014 for making compassionate appointment; and

(b) direct the respondents for granting of ex-gratia to the deceased family, in absence of ban in making compassionate appointment; and

(c) pass such further order or orders which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case."

Brief facts of the case, as stated in applicant's father, who was working with succumbed to severe burn on 9.9.2012. the OA, are that the the respondents, was

2.1 The mother of the applicant submitted an application dated 22.12.2012 to the respondents and prayed for grant of compassionate appointment to her elder son Shiv Kumar (applicant).

2.2 When no response received by the applicant, an application dated 24.9.2013 under Right to Information Act was submitted for seeking information about the fate of said application dated 22.12.2012 and also about the policy of the Department regarding compassionate appointment.

2.3 On 19.10.2013, applicant received reply from the respondent to the effect that regarding job under compassionate appointment, MTNL Corp., office has imposed blanket ban on all types of recruitment under compassionate ground vide order dated 18.3.2004 and as and when ban will be lifted, action will be taken as per rules. However, applicant not being satisfied with the aforesaid reply, gave a legal notice dated 29.8.2014 to the respondents through his counsel for making of either compassionate appointment or extending of either alternative relief in form of ex-gratia. However, till date respondents have not given any reply to the same.

2.4 Feeling aggrieved, the applicant has filed this OA seeking the reliefs as quoted above.

Pursuant to notice issued to the respondents, respondent no.2 has filed its reply in which it is stated that prayer made by the applicant is twofold firstly he is seeking compassionate appointment consequent upon the death of his father Shri Mohan Lal, which cannot be acceded to in view of the fact that there is total ban on the  compassionate appointment imposed  by the Corporation Office of the respondent.

3.1 In the second part of the prayer, the applicant is seeking ex- gratia payment from the respondents for this it is relevant to point out that as per the record of the Respondent No.2- MTNL, the legal heirs of the deceased have been given Rs.4,45,127/- as GPF and Rs.1,81,125/- as leave encashment amount totaling upto Rs.6,26,252/- and as per records, an amount of more than Rs.9300/- p.m. is being paid as family pension from 10.9.2012 and shall be paid till 9.9.2022. Further a sum of Rs.7,35,956/- was paid as Death-cum-Retirement Gratuity was also paid to the wife of the deceased Govt. employee. Even otherwise, there is no provision for ex-gratia payment within the respondent department.

3.2 They further stated that in OA 3805/2013 (Dinesh vs. MTNL),  which  was  dismissed  vide  Order  dated  13.1.2015,  this Tribunal had already given a finding which reads as under:-

"8. As there is complete ban on appointment on compassionate grounds and in view of the decision taken by respondent-MTNL, vide letter dated 5.3.2005 (ibid), that the applicants' request for providing compassionate appointment has been wait-listed and has to be considered as and when the ban will be lifted, and further in view of the fact that the applicants have not produced any material showing that the said ban has been lifted, I find no merit in the claim made by the applicants in the present O.A. That apart, the applicants have not challenged the legality of the decision taken by the respondent-MTNL imposing ban on appointment on compassionate grounds. There may be several such requests made by dependants of other deceased employees, and because of imposition of the ban, those cases may be pending for consideration. All those cases including that of the applicants may be considered by the respondent-MTNL as and when the ban is lifted."

3.3 They further stated that the present case is squarely covered by the said Order of this Tribunal and the case of the applicant would be considered as and when the ban is lifted. In fact, the application received vide MTNL Central Receipt No.991345 dated 22.12.2012 as given to Ms. Chandrawati w/o late Mohan Lal was taken on record vide registration number 2012/91 and would be considered by the Respondent no.2 as soon as the ban is lifted.

During  the  course  of  hearing,  counsel  for  the  applicant submitted that this case was earlier heard by this Tribunal and dismissed, vide Order dated 30.8.2016, only on the ground that there was a ban and MTNL can consider only when the ban is lifted. The applicant filed Review Application No.230/2016 which was allowed by this Tribunal vide Order dated 3.1.2017 by observing that it is seen that regarding grant of ex-gratia to the deceased family in lieu of compassionate appointment, no order has been passed in the final order dated 30.8.2016, perhaps this was never raised by the applicant's counsel at the time of final hearing.

4.1 Counsel further submitted that thereafter applicant moved Misc. Application No.3979/2017 for amendment in the relief clause (b), which reads as follows:-

"(b) direct the respondents to consider adopting of an appropriate policy relates with ex-gratia, to be given deceased family, in lieu of compassionate appointment; and"

The said MA was allowed vide Order dated 17.4.2018. Thereafter applicant filed amended OA. The respondents have also filed their counter reply to the said amended OA. However, in the reply filed by the respondents have not given any cogent reply to the said prayer but they stated that the said prayer of grant of ex-gratia in the OA is not permitted to be claimed in this OA.

4.2 Counsel further submitted that if there is a ban on grant of compassionate appointment, then the respondents are duty bound to form a policy to grant ex-gratia payment in lieu of compassionate appointment as the applicant is deprived consideration of his case for grant of compassionate appointment on the ground of ban imposed by the competent authority which is unreasonable and not sustainable in view of the fact that object of grant of compassionate appointment is to grant immediate relief to the family whose bread earner is no longer survived to enable the family to tide over from the financial crises. In support of his contention, counsel placed reliance on the judgments of the Hon'ble Supreme Court in the cases of Gainda Ram and others vs. Municipal Corporation of Delhi and others, (2010) 10 SCC 715; MGB Gramin Bank vs. Chakrawarti Singh, (2014) 13 SCC 583; and Canara Bank and others vs. M.Mahesh Kumar, (2015) 7 SCC 412.

Counsel for the respondents submitted that the applicant is also seeking grant of ex-gratia in lieu of compassionate appointment and there is no provision for ex-gratia payment within the respondent department. He further contended that MTNL has already a policy of compassionate appointment, therefore, there is no question of forming of a policy relating to ex-gratia in lieu of compassionate appointment and there cannot be two policies running at the same time on the same subject, i.e., policy of compassionate appointment and ex-gratia in lieu of compassionate appointment. The application of the applicant for grant of compassionate appointment was taken on record and would be considered by the MTNL as soon as the ban is lifted.

5.1 Counsel further stated that it is not within the domain of the MTNL to make a policy, much less substituted policy of ex-gratia in lieu of compassionate appointment, as the policy decisions are to be taken by the Department of Telecommunication, which is the parent Ministry of respondent based on the directions of Govt. of India.

The  compassionate  appointment  policy  as  issued  by  the DoP&T was examined, there is no provision for giving any ex-gratia in lieu of compassionate appointment. The judgments cited by the applicant are based on policy of organizations which may have some specific provision for grant of ex gratia in lieu of compassionate appointment. As such the same are not applicable to the facts of the present case. The compassionate appointment policy of department under the purview of Govt. of India is as directed by the DOP&T vide consolidated instructions on compassionate appointment vide OM dated 16.1.2013 is relevant. Hence, this Court reiterates the directions given in OA No.3805/2013 in which it was directed that as there is complete ban on appointment on compassionate grounds and in view of the decision taken by respondent-MTNL, vide letter dated 5.3.2005, that the applicant's request for providing compassionate appointment has been wait-listed and has to be considered as and when the ban will be lifted, and further in view of the fact that the applicant has not produced any material showing that the said ban has been lifted, I find no merit in the claim made by the applicant in the present O.A. That apart, the applicant has not challenged the legality of the decision taken by the respondent-MTNL imposing ban on appointment on compassionate grounds. There may be several such requests made by dependants of other deceased employees, and because of imposition of the ban, those cases may be pending for consideration. All those cases including that of the applicant may be considered by the respondent-MTNL as and when the ban is lifted.

In view of the above position, this OA is dismissed. There shall be no order as to costs.