Shrikant Pandey vs Union Of India & Ors

Om Prakash VII, Member (J)

The present O.A. has been filed under Section 19 of the AT Act, 1985 with prayer to quash the impugned order dated 22.4.2014 and direct the respondents to consider compassionate appointment of the applicant on any suitable post.

The brief facts of the case are that applicant is the son of late Sambhu Nath who was working as Postman in district Azamgarh and died in harness on 10.2.2012 leaving behind two sons namely Rama Kant Pandey, Sri Kant Pandey and married daughter Radhika Pandey. Mother of the applicant already died on 15.12.1993. Applicant submitted application for compassionate appointment on 31.7.2012. Elder brother of the applicant also submitted affidavit on 20.6.2012 and has given no objection. Applicant earlier filed O.A. No. 267 of 2014 which was disposed of by this Tribunal vide order dated 3.3.2014 with direction to decide the claim of the applicant within 3 months and in pursuance of the same, respondents have passed the impugned order dated 22.4.2014 and declined to give the appointment to the applicant under dying in harness rules. Applicant challenged the same in the present O.A.

Learned counsel for respondents have filed counter affidavit, stating therein that deceased employee died on 10.2.2012. He had left only 10 months and 21 days of service. Deceased left two sons one Ramakant Pandey and other applicant. Brother of the applicant has given affidavit in favour of the applicant. Both the sons are married and retiral dues have also been paid to the family of the deceased employee. Respondents have cited the Judgment of Sanjay KumarSingh Vs. UOI and others passed by CAT, Lucknow Bench in O.A. No. 542/2013 to show that married son is not included in the definition of dependant in terms of Gramin Dak Sewak (Conduct and Employment ) Rules, 2001, as well as O.M. dated 9.10.1998. It is mentioned in the impugned order dated 22.4.2014 that as per the direction given by the Director General , Post, New Delhi vide letter dated 9.10.2013, married son is not entitled for compassionate appointment and on this ground alone rejected the claim of the applicant for compassionate appointment.

Heard the learned counsel for the parties and perused the record.

During the course of arguments, learned Counsel for the applicant reiterated the averments made in the OA and learned counsel for the respondents has reiterated the averments made in the counter affidavit.

After giving the thoughtful consideration to the rival contentions of the counsel for the parties, I am unable to accept the contentions raised by the learned counsel for the respondents as the impugned order dated 22.4.2014 whereby the applicant’s case for grant of compassionate appointment has been rejected only on the ground that married son of the deceased does not come under the definition of dependent on a Government servant which is not sustainable in the eyes of law as the scheme for grant of compassionate appointment was issued on 9.10.1998 which is applicable in the case of the applicant as his father died on 10.2.2012 but in the meantime, the said scheme for compassionate appointment has been amended vide Office Memorandum dated 16.1.2003, which provides that definition of dependent family members of the deceased for compassionate appointment and that too is quoted below:-

“Note I – ‘Dependent Family Member’ means:

(a) Spouse; or

(b) Son (including adopted son); or

(c) Daughter (including adopted daughter); or

(d) Brother or sister in the case of unmarried government servant or .....”

which also does not provide that married son cannot be considered for grant of compassionate appointment, however, on the basis of clarification issued by the respondents as stated above, the case of the applicant was rejected which is contrary to the provisions of the Scheme as father of the applicant died in the year 2012 and hence, the case of the applicant is required to be considered as per the provisions of the Scheme for compassionate appointment circulated in the year 1998 and according to which in the definition of dependent, only son including adopted son has been incorporated and no distinction has been made between married and unmarried son. In the absence of any such distinction, it is to be inferred that both married and unmarried son are eligible for appointment on compassionate ground subject to fulfillment of other conditions as envisaged in the Scheme. The Single Bench of this Tribunal in OA No.1042/2012 (Ripu Daman Singh vs. Union of India and others) vide its Order dated 7.4.2015 also took the same view.

I also find that the issue involved is identical to the issue involved in OA No.620/2014, which was decided by this Bench vide Order dated 24.5.2016 in which the following observations have been made:-

“It is further pointed out that in the year 2015, again a clarification was issued to the frequently asked questions by the DOP&T clarifying that married son can be considered for appointment on compassionate ground if he fulfils all other requirements of the scheme.

In the Writ Petition No.908/2015 (Nagendra Kumar Yadav vs. Food Corporation of India and others) reported in 2016 Lab IC 1541, the Hon’ble High Court of Chhattisgarh at Bilaspur observed as follows:-

“19. It is well settled that marriage is an institution/sacred union not only legally permissible but also basic civil right of a man and woman. One of the most important inevitable consequences of marriage is the reciprocal support and marriage is an institution has great legal significance. Right to marry is necessary concomitant of right to life guaranteed under Article 21 of the Constitution of India as right to life includes right to lead a healthy life. Marriage does not bring about a severance of the relationship between a father and mother and their son or between parents and their daughter. These relationships are not governed or defined by marital status.

Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical Union. When two souls thus unite, a new soul comes into existence. That is how, the life goes on and on, on this planet. (See Mr. 'X' v. Hospital 'Z' MANU/SC/0733/1998 : (1998) 8 SCC 296.)

In the matter of Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755. Their Lordships of the Supreme Court have clearly held that marriage is one of the basic civil rights of man/woman and observed pertinently in paragraphs 24 & 25 as under:-

"24. Marriage is often described as one of the basic civil rights of man/woman, which is voluntarily undertaken by the parties in public in a formal way, and once concluded, recognizes the parties as husband and wife. Three elements of common law marriage are (1) agreement to be married (2) living together as husband and wife, (3) holding out to the public that they are married. Sharing a common household and duty to live together form part of the Consortium Omnis Vitae which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other. One of the most important invariable consequences of marriage is the reciprocal support and the responsibility of maintenance of the common household, jointly and severally. Marriage is an institution has great legal significance and various obligations and duties flow out of marital relationship, as per law, in the matter of inheritance of property, succession ship, etc. Marriage, therefore, involves legal requirements of formality, publicity, exclusivity and all the legal consequences flow out of that relationship.

Marriages in India take place either following the personal Law of the Religion to which a party is belonged or following the provisions of the Special Marriage Act. Marriage, as per the Common Law, constitutes a contract between a man and a women, in which the parties undertake to live together and support each other. Marriage, as a concept, is also nationally and internationally recognized. O'Regan, J., in Dawood v. Minister of Home Affairs (2000) 3 SA 936 (CC) noted as follows:

"Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well. The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends...."

Time and again, Their Lordships of the Supreme Court in umpteen number of cases repeatedly emphasized the need of compassionate appointment to the dependent of the deceased Government servant expeditiously. The whole object of granting compassionate appointment is to enable the bereaved member of the deceased Government servant to earn both the ends. Therefore, whether or not the son of the deceased Government servant should be granted compassionate appointment is to be decided with reference to the fact that whether on consideration of all relevant facts and circumstances, he or she is dependent on the deceased FCI servant excluding purely on the ground of marriage is absolutely impermissible in law. The yardstick for extending the benefit of compassionate appointment should be dependency of the dependents on the deceased FCI servant. Marital status of the dependent should not be an impediment for his/her consideration on compassionate ground, as the object of such an appointment is to wipe-out his tears from the eyes of the suffering family on account of loss of sole breadwinner in the family, other consideration would defeat the object of the social welfare benefit which the Union of India has framed to see that deceased family survives after the death of FCI servant. Though the policy of the Central Government was accepted by the FCI, the policy does not contain any such prohibition that married son is not entitled for compassionate appointment, but frequently asked questions which are claimed to be the policy is not in accordance with law. It has been assumed that on account of marriage, son ceases to be dependent on the FCI servant which is an erroneous approach on the part of the respondents. It cannot be assumed without examining the facts and without taking into consideration the attendant circumstances that married son is not dependent on the Government servant. In a given situation, son even after marriage may not be earning and may be fully dependent upon the earnings of his father. Therefore, the assumption that once one is married, he becomes no longer dependent on his father is an incorrect proposition, and it cannot be accepted, as such, denial of compassionate appointment to the son of the deceased FCI employee on the ground of his marriage is violative of Articles 14 and 15 of the Constitution of India.”

In the result, for the foregoing reasons, the OA deserves to be allowed and the impugned order dated 22.4.2014 passed by the respondents is liable to be quashed.

Accordingly, the OA is allowed and the impugned order dated 22.4.2014 is quashed and set aside. The respondents are directed to reconsider the case of the applicant, ignoring the fact that applicant is a married son, for appointment on compassionate ground, if he otherwise fulfils the conditions specified in the Scheme and communicate their decision by passing reasoned and speaking order to the applicant within a period of three months from the date of receipt of certified copy of this Order.

There shall be no costs.