Sumod Dinesan vs Flag Officer Commanding-In-Chief, (For Cso P & A) Headquaters, Southern Naval Command, Kochi - 682004 & Ors.

K. Haripal, Member J

Applicant is the son of late K.Dineshan, former MCM (MT Fitter) in INS Garuda who had died in harness on 13.07.2009. Thereafter, it is claimed that the applicant had submitted an application for compassionate appointment on 17.09.2009, which was not considered in time. Even though his case was considered later, on the ground that he was married, it was rejected. Aggrieved by the same, he moved O.A.132/2015 before this Tribunal. By Annexure-A2 order dated 17.11.2015, the Tribunal found that such a reasoning does not stand to reason because the restriction with regard to the consideration of an application of a married son of a dependent was brought into force only by circular of the DoPT dated 25.02.2015, whereas the case of the applicant was considered prior to that. So, the Tribunal directed the respondents to consider the case of the applicant again. Inspite of the same, it is submitted that his legitimate application for appointment under the compassionate appointment scheme was not considered and he was informed through Annexure-A5 that it cannot be considered and aggrieved by the same, he has approached this Tribunal for quashing the communication rejecting his application for compassionate appointment, to issue a direction to the respondents to consider his claim for appointment under the scheme again and to pass orders.

The applicant submitted that his father had died after prolonged treatment, he was suffering from intracranial bleeding, bicytopenia with leukocytosis and the family had to incur huge expenses for the treatment and the family is still in huge financial insecurity. The mother is presently suffering from cancer, for which also the applicant is spending huge amounts for the treatment. The financial condition of the family has not been considered by the respondents while processing his application for compassionate appointment. According to him, everything has been done to deny him the benefit of compassionate appointment and the aforestated reliefs are sought.

The respondents have strongly opposed the application. According to them, the case of the applicant was considered nearly nine times and all the time he was found not eligible and thus the application had to be rejected. Even prior to Annexure-A2 order passed by this Tribunal his case was considered thrice, during 2010-11, 2011-12 and 2012-13. Thereafter, since the restriction with regard to the number of times an application could be considered was raised, his case was considered later also and all the time he was found not eligible and thus the application was rejected for valid reasons.

Respondents also say that they are following a scheme, which is in vogue, as formulated by the Department of Personnel and Training, that 100 point scale with 100 relative points are in vogue. The application was considered in accordance with the said scheme in force, all the time the applicant did not reach the level securing appropriate scores in accordance with the availability of vacancies and thus his case could not be considered. Nine times his application was considered by carrying over, all the time he could not secure the necessary benchmark points and thus he could not be considered for appointment under the scheme. Therefore, the application is sought to be dismissed.

I heard Smt. Amrutha Selvam, learned counsel for the applicant and Sri.Anil Ravi, learned Additional Central Government Standing Counsel for the respondents, in detail.

The learned counsel for the applicant submitted that the applicant is an ITI certificate holder, attending add fabrication works, that presently the financial condition of the family is very poor. Even though such a scheme is projected by the respondents, the experience of the applicant is that illegal appointments are made under its cover. The learned counsel submitted that the implementation of the scheme is in a tainted fashion, that it creates a situation in which compassionate appointment can be obtained by greasing the palms of the concerned and that was why his case was not considered. The learned counsel also considered that the applicant and the family are living in extreme penurious condition, unless employment assistance is given, that would be disastrous.

On the other hand, learned Standing Counsel pointed out that all the time the application was considered following the weightage point system, which is in force in the Navy, and all the time the points secured by him in accordance with the set criteria did not reach the requisite mark and thus the applicant is not entitled to get any relief.

It is the common case that Dineshan, the father of the applicant had passed away on 13.07.2009 while working in the Navy as an MT Fitter. The applicant claims that he had submitted a representation for compassionate appointment on 17.09.2009, but according to the respondents, they had received such an application only on 01.12.2010 after about one year and three months of the death of the Government servant. Any how, before he had approached earlier with O.A.132/2015, the application was considered consecutively for three years from 2010, in 2010-11, 2011-12 and 2012-13 and all the time he could not reach at the top of the list securing marks vis-a-vis availability of vacancies. Thus he could not be considered for appointment. Even after Annexure-A2 order his case was considered and now, even after considering the application eight/nine times, he could not be appointed and that any further request for considering the applicant cannot be entertained.

It is the settled proposition, as held by the Hon’ble Supreme Court in Haryana State Electricity Board and another v. Hakin Singh [(1997) 8 SCC 85] that compassionate appointments cannot be claimed as a matter of right. To quote the words of the Hon’ble Supreme Court:

“The rule of appointments to public service is that they should be on merits and through open invitation. It is the normal route through which one can get into a public employment. However, as every rule can have exceptions, there are a few exceptions to the said rule also which have been evolved to meet certain contingencies. As per one such exception relief is provided to the bereaved family of a deceased employee by accommodating one of his dependents in a vacancy. The object is to give succor to the family which has been suddenly plunged into penury due to the ultimately death of its sole breadwinner. This Court has observed time and again that the object of providing such ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment.”

Similarly, the Apex Court has held in Umesh Kumar Nagpal v. State of Haryana [(1994) 4 SCC 138] as follows:

“The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and met-it. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.”

That means, compassionate appointment cannot be claimed by a member of the family of the deceased as a matter of right. It is intended to help the family of the deceased Government servant, who had passed away untimely, to tide over from the penurious condition to which the family was put due to the sudden death of the breadwinner of the family. So, the first and foremost consideration in a case of compassionate appointment is whether the death of the Government servant had caused financial difficulties and the family was put in a penurious condition on the untime demise of the breadwinner.

The second consideration is whether the applicant was depending on the Government servant for his livelihood. Now the statement of the respondents clearly indicates that the application was considered eight times as shown in the table below:

Period of consideration

Position of the applicant

Number of vacancies

2010-2011

42

9

2011-2012

28

12

2012-2013

23

10

2014-2015

22

8

2015-2016

28

15

2017

23

3

2017-2018

35

18

2018

19

6

The above tabular form clearly indicates that the case of the application was successively considered from 2010 to 2018, except in 2013-2014, and all the time his position was far below the number of vacancies for which compassionate appointment was considered. Resultantly, he could not be considered for appointment.

It is also important for this Tribunal to consider whether the respondent organisation was following any defined scheme and if so, the request submitted by the applicant was considered in tune with the said scheme. Now, it is not disputed that a scheme is in vogue as advised by the Department of Personnel and Training and the case of the applicant was considered truly in terms of the scheme. It is also submitted by the respondents that the widow, that is the mother of the applicant is getting family pension of about Rs.20,550/- that after the death the family was given DCRG of Rs.5,77,358/-besides Rs.61,364/- from the CGEGIS and Rs.24,182/- from the GPF of the deceased. When the application was considered, all these aspects were weighed with and thus the applicant could secure only 37 weightage points at each time, in accordance with the criteria followed in the scheme.

In this connection, it is very important to say that the OA is conspicuously silent that the applicant was dependent on the deceased Dineshan at the time of his death. It is here that the contention of the respondents that the applicant was married during the life time of the father comes to the fore. As rightly pointed out by the learned Standing Counsel, ordinarily, a male child will not venture to enter into a nuptial relationship unless he is able to stand on his legs or earn his own livelihood. In other words, normally it cannot be assumed that he would take up a burden to look after his own family anticipating the income of the father. That is something against common course of natural events and human conduct. That was why the respondents have highlighted that the applicant was married during the life time of the father and that he was never dependent on the father. Even though the Tribunal through Annexure-A2 had directed the respondents to revisit the question as to whether he can be considered for appointment that he should not be denied opportunity merely for the reason that he was married and he should have been considered if he is otherwise eligible and fulfills the criteria in the light of the DopT OM dated 16.01.2013.

It is evident that the case of the applicant was considered atleast eight times and all the time he was found not eligible. It is the accepted principle, as stated earlier, that the compassionate appointment is not an ordinary mode of appointment, but is an exception to the general mode of recruitment. Since it is an exception, it has to be strictly construed.

The documents produced by the respondents clearly indicate that his case was considered truly in terms of the scheme approved by the Department of Personnel and Training and relative merit points were awarded. It is a known fact that compassionate appointment is done only in 5% of the total vacancies arising in an year in Group-C and Group-D categories. That means, there may be large number of applicants whereas the vacancies will be limited. When vacancy is short, naturally demand will be more. So, only the most deserving persons who get highest number of relative merit point alone can be considered for appointment. From the table quoted supra, it is clear that all the time the number of vacancies were less, whereas the position of the applicant was far below. Naturally, the eligibility of the applicant cannot be considered for appointment and he did not reach the panel shortlisted for appointment.

Weightage point system is introduced to bring in uniformity in assessing indigent condition of the family, which is an accepted method of implementing the scheme. Thus employment assistance is given to the most deserving candidates who come up in the top of the list, securing maximum weightage points.

As noticed earlier, the applicant does not have a definite case before the Tribunal that he was dependent on the father while he was in service. Moreover, the grounds urged by him that he is in straitened financial condition, he has to look after the mother, the mother is aged and suffering from cancer etc. are not valid grounds in the set standards approved by the organisation. Moreover, it was also stated that the father had died after prolonged treatments, huge amounts had to be spent for his treatment etc. But it must be stated that no document has been produced to prove the assertions. Secondly, since he was a serving employee, naturally, the reimbursement claims should have been made under the Medical Attendance Rules and even if such claims were not made, that is not a ground for claiming for employment assistance.

It is also important to note that the father had passed away on 13.07.2009. Now, nearly 15 years have passed. This time lag proves that the family could pull on without any employment assistance. The facts that the applicant is qualified to be appointed, he is in financial difficulties, has to look after the family consisting of the aged and ailing mother etc. are not relevant considerations for accepting his claim.

Moreover, even though the learned counsel for the applicant hinted that appointments under the scheme are made on extraneous considerations, such a vital aspect does not form part of the pleadings. Consequently, the respondents could not meet the same. When certain allegations were raised during the course of argument, the learned counsel did not give particulars. On the basis of any vague or unspecific contentions, Courts cannot make any inference. On the other hand, when the scheme is in force, it is unlikely that appointments could be made on extraneous considerations.

After verifying the records, it is seen that the respondents have shown undue indulgence to the applicant. It is unusual that a compassionate appointment claim was considered repeatedly and successively for eight or nine times, but all the time the applicant could not get to the benchmark level and his case had to be rejected. In the circumstances, there is no point in asking the respondents to consider the case again. I am satisfied that the application was considered and the case was rejected after taking into account all the relevant aspects in proper perspective. There is no valid ground to direct the respondents to consider the claim again. Therefore, the Original Application is liable to be dismissed. Dismissed. No costs.

(Dated, this the 6th August, 2024)