Sushil Kumar vs Medical Superintendent And Ors

Brief facts of the current O.A. are that the father of the applicant, who was working as a Cleaner at GTB Hospital died while in service on 29.11.2009. He left behind four dependents i.e. his widow, one son (applicant and two daughters aged 20 years and 18 ½ years. Thereafter, the applicant applied for his appointment on compassionate grounds vide his representation dated 22.04.2010 along with relevant documents and NOC from other family members. The applicant sent reminders on 18.03.2011 and 21.03.2011 but in vain. Hence, the applicant was compelled to file an OA-2834/2014, which was decided on 15.07.2015 directing the respondents No.1 and 2 to consider the applicant's request for appointment on compassionate grounds by treating his O.A. as his supplementary representation. The respondents were also directed to provide the family and financial circumstances of Mr. Rahul Kumar and other candidates recommended for compassionate appointment. The respondents filed Review Application No. 324/2015 against the judgment/order in OA-2834/2014 dated 15.07.2015 pointing out that since 70 to 90 candidates had been recommended by the respondents, it would not be feasible to give details of all the candidates. The said Review Application was disposed of by the Tribunal on 11.02.2016 directing the respondents to give details of only such candidates, who were considered along with the applicant by the Committee which met on 17.02.2012 and 30.03.2012 and who were recommended for compassionate appointment. On 29.04.2016, the respondents again rejected the case of the applicant without furnishing the details of family and financial circumstances of the recommended candidates. Hence, the said order has been impugned by the applicant in the current O.A.

Due to non compliance of Tribunal's orders in OA-2834/2014 and RA-324/2015 by the respondents, the applicant filed CP-308/2016. On 16.09.2016, the Tribunal directed personal presence of the contemnors. However, during the pendency of the aforesaid Contempt Petition, the respondents supplied the list of candidates recommended by the Screening Committee for compassionate appointment in its meeting held in the year 2012 along with their financial circumstances/condition.

The applicant states that the respondents have given compassionate appointment to candidates, who had received more death cum retiral benefits and family pension than the applicant. He has drawn attention to candidates figuring at Serial Nos. 5,10,11,16,18,19,31,34,37,38,39,40,42,48,49,50,54,55,61,62,63,64 and 66 of Annexure A-11), who, despite getting more monthly pension and retiral benefits than the family of the applicant, were recommended for compassionate appointment. The applicant states that he has been discriminated against and not been considered fairly in both the meetings held in 2012 as well as in 2016. He has, therefore, prayed for the following reliefs:-

"(a) Call for the records of the case.

(b) Declare that the case of the applicant for compassionate appointment has been arbitrarily and wrongfully rejected by the respondents.

(c) Quash and set aside the order dated 29.04.2016 at Annexure A-1.

(d) Direct the Respondents to give Compassionate Appointment to the Applicant.

(e) Direct the Respondents to give all consequential benefits to the Applicant.

(f) Cost of the Original Application may be awarded in favour of the Applicant and justice may be done."

The respondents in their counter affidavit, submit that the case of the applicant was placed and considered by the Screening Committees in their meetings held on 17.02.2012 and 30.03.2012 for the first time. The Committee could not recommend his name for appointment on compassionate grounds and this was conveyed to the applicant vide letter dated 12.06.2012. The case was again placed before the Screening Committee in the meeting held on 18-19/09/2013. Again the Committee could not recommend his case but the outcome of the meeting was conveyed to the applicant on 20.12.2013. Case of the applicant was again considered by the Screening Committee for the third time in the meeting held on 09-11/07/2014, 06.08.2014 and 18.09.2014. Again the Committee could not recommend his case. However, it was directed that his case would again be considered in accordance with O.M. dated 26.07.2012, 16.01.2013, & 30.05.2013 and the Department's Circular dated 16.08.2013. The outcome of the meeting was conveyed to the applicant on 20.10.2014. A reference was then made to the decisions of the Tribunal in OA-2834/2014 dated 15.07.2015. Respondents state that the case of the applicant was again considered by the Screening Committee in their meeting held on 28.12.2015, 04.01.2016, 13.01.2016 and 02.02.2016 but was not found fit for being recommended. Finally, a speaking order dated 29.04.2016 giving details of another appointee Sh. Rahul Kumar S/o Late Sh. Harish Chand, Ex-Chowkidar, GTB Hospital (a case cited by the applicant) was issued.

4.1 The respondents contend that appointment on compassionate ground is governed by the Guidelines issued by Government of India as contained in the Scheme for Compassionate Appointment and various judgments of the Hon'ble Supreme Court on the subject. Such appointments are restricted upto 5% of the vacancies available for the direct recruitment quota in any Group-C or D posts. It is emphasized that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the deceased employee in order to relieve it from economic distress, which condition does not exist in the case of the applicant any more. The respondents have relied upon the following judgments of Hon'ble Supreme Court:-

(i) Auditor General of India and Ors. Vs. G. Ananta Rajeswara Rao,(1994) 1 SCC 192.

(ii) Umesh Kumar Nagpal Vs. State of Haryana and Ors., JT 1994(3) SC 525.

(iii) Life Insurance Corporation of India Vs. Mrs. Asha Ramachandra Ambekar & Ors., JT 1994(2)SC 183.

(iv) State of Haryana and Anr. Vs. Ankur Gupta, 2003(7)SCC 704.

(v) This Tribunal in the case of Sh. Ashok Kumar Vs. Govt. of NCT of Delhi, OA-239/2014 decided on 04.09.2014.

(vi) This Tribunal in the case of Hukam Chand Vs. Govt. of NCT of Delhi & Ors., OA-279/2014 decided on 13.02.2015

The respondents content that the case of the applicant has been considered many times by the previous Screening Committees and is outside the criteria laid down in the relevant Instructions/Rules etc. The Govt. of NCT of Delhi took a policy decision and issued a Circular dated 23.02.2017 laying down procedure and policy for appointment on compassionate grounds in Govt. of NCT of Delhi, which has been duly followed in the instant case.

I have gone through the facts of the case carefully and considered the submissions made by both sides.

5.1 During the course of hearing, the learned counsel for the applicant Sh. A.K. Behera taking the Bench through the facts of the case reiterated the issues already raised in the O.A. He emphasized that the case laws cited by the respondents are entirely different on facts since in none of the relied upon citations show that candidates receiving higher financial retiral benefits and pension, were given preference over those, who were in receipt of lesser financial benefits. In support of this contention, the learned counsel drew my attention to the comparative chart prepared by him in this regard, in support of his contention. The same is reproduced below:-

Sr.

Name of the Candidates

Category/ Post of

Terminal Benefits

Monthly Family

Comments

No.

the deceased

Rs.

Pension Rs.

1.

Ms.Khushboo

(Sr.no.63@pg

Ex-Driver

8,68,860/-

6215/-

Both

terminal

no.60)

benefits

and

monthly

Family

Pension

is

higher

than that

of

the

applicant.

2.

Smt. Dayawati (Sr.no.40@pg no.

Ex-Driver

5,93,680/-

6360/-

Family

pension is

56)

higher

than

the

applicant.

Terminal

benefit

marginally lower.

3.

Smt. Raj Rani (Sr.no.19@pg no.

Ex-Driver

5,64,067/-

6100/-

-Ditto-

53)

4.

Sushil Kumar (Applicant)

Ex-Driver

6,14,192/-

5235/-

5.

Smt. Seema Ahmed (Sr.no.37@

Ex-LDC (Group C

9,67,612/-

5790/-

Both benefits

and

pg. no. 56)

post like Drivers)

family

pension

higher than that of

the applicant.

6.

Sh. Praveen

Meena

(Sr.no.50@

Ex-UDC (Group C

6,79,790/-

6810/-

-Ditto-

pg no.58)

post like Drivers)

7.

Sh. Pradeep

Kumar

(Sr.no.54@

Ex-Chowkidar

7,63,400/-

5080/-

-Ditto-

pg no. 59)

Per contra, the learned counsel for the respondents Sh. Kapil Agnihotri argued that the applicant has confined the information only to the grant of terminal benefits and family pension received by other applicants/dependents of the deceased employees, but has failed to mention that the applicant himself is in receipt of income from agricultural land, to the tune of Rs.10,000/- per annum. So in totality, his financial assets became (were) more than the recommended candidates.

I have gone through the facts of the case and considered the rival submissions. I am not impressed by the arguments advanced by the respondents that income from other sources, (in this case Rs.10,000/- per annum from agricultural land), was a major criteria for rejecting the claim of the applicant for appointment on compassionate grounds. It is an admitted fact that certain recommended candidates were/are in receipt of higher family pension and terminal benefits than those received by the applicant. This fact stands confirmed from the comparative chart available at Annexure A-11. Perhaps for this very reason the respondents were unwilling to furnish the information in respect of other candidates, who were considered and recommended for compassionate appointment, along with the applicant in OA. It was with great reluctance that the particulars of the candidates, who were considered along with applicant and were considered by the Committees, which met on 17.02.2012 and 30.02.2012 were shared by the respondents. Surprisingly, almost 25% of the recommended candidates (23 out of the recommended 70) seem to be in receipt of more monthly pension and retiral benefits than received by the family of the applicant. The explanation put forth for this anomaly by the respondents, lacks conviction and cannot be accepted

The respondents would have us believe that the need of immediate assistance to the family of the deceased no longer exists since the father of the applicant expired 08 years ago. Be that as it may, the fact remains that the case of the applicant was considered in the year 2012. At that point of time his need for financial assistance was as great as of other candidates, who were considered along with him. If a wrong or erroneous selection was done at that point of time, it certainly needs rectification. In the impugned order dated 29.04.2016, it is seen that Rahul Kumar, whose case was considered by the Screening Committee and recommended for appointment on compassionate grounds, had lesser pension and lesser terminal benefits than the applicant. While these parameters worked in his (Rahul Kumar) favour, a contrary stand seems to have been taken in case of the applicant.

The family details of the applicant (Sushil Kumar) also seem to have been wrongly computed. Name of the 2nd daughter (sister of applicant) has been omitted in the liabilities shown against the name of the applicant in order dated 29.04.2016. This being so, obviously, the points would also not have been computed correctly. The anomalies mentioned by the applicant in Annexure A-11 as well as the one available in order dated 29.04.2016 (omission of the second daughter of the deceased employee) in the liability head) shows that some kind of prejudice or bias exists qua the applicant in the respondent organization. This could be on account of the fact that he has been knocking the doors of the Tribunal time and again to get his case processed fairly. Undoubtedly, the policy of the Government on compassionate appointment has to work within the parameters prescribed therein but it is equally imperative to implement the Scheme objectively. The respondents cannot be allowed to get away with glaring discrepancies by providing weak and unconvincing justification for the same.

In view of the aforementioned facts, the O.A. is allowed. The respondents are directed to reconsider the claim of the applicant for compassionate appointment by taking into account all facts and submissions and consider his case when the next available vacancy arises. No costs.