Upasana Devi vs Union Of India & Ors

Om Prakash VII, Member (J)

Shri B.N. Singh, learned counsel for the applicant, and Shri Chakrapani Vatsyayan, learned counsel for the respondents, were present at the time of hearing.

Present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act 1985 challenging the orders dated 13.07.2020, 07.08.2020 and 21.01.2021 passed by respondent no.2 rejecting the applicant’s claim for compassionate appointment and following reliefs have been sought:

“(i) To issue a suitable order or direction to call for record and quashed and set aside the impugned orders dated 13.07.2020, 07.08.2020 and 21.01.2021 (Annexure A-1)

(ii) To issue a suitable order or direction to the respondents to reconsider the claim of the applicant for compassionate appointment on the basis of scheme existing on the death of employee i.e. on 13.10.2018 and consider her High School certificate as eligible in light of revised scheme dated 30.05.2017.

(iii) To issue order or direction to the respondents to appoint the applicant on any suitable post.

(iv) To issue any other suitable order or direction as this Hon’ble Tribunal may deem fit and proper in the circumstances of the present case.

(v) to award the cost of the petition in favour of the applicant.”

Brief facts of this case are that the husband of the applicant who was appointed on compassionate ground in place of his father on 02.09.2009 died on 13.10.2018 while working as GDSMD Tanda Sahuwala on regular basis leaving behind his wife and a son. The applicant who is the widow of the deceased government employee passed High School in the year 2005 and Intermediate in the year 2007. After the death of her husband, the applicant submitted an application dated 12.11.2018 for compassionate appointment in place of her husband. Thereafter vide order dated 29.11.2018 respondent no.3 asked her to complete the synopsis form which the applicant completed with all the required documents. When no reply was received from the respondents, she made a reminder dated 12.03.2020. Thereafter the respondents, vide impugned order dated 08.03.2019, rejected the claim of the applicant by stating that on the basis of letter no.17-02/2018-GDS, High school should be passed with Mathematics and English subject. After receiving the said impugned order the applicant moved a detailed application on 18.08.2020 requesting the respondents to reconsider her claim for compassionate appointment on the basis of the scheme existing on the death of the deceased employee i.e. on 13.10.2018. The applicant also filed O.A./983/2020 before this Tribunal which was decided on 03.12.2020 with a direction to the competent authority amongst the respondents to decide the applicants’ representation dated 18.08.2020 with a reasoned and speaking order keeping in light the judgement and order of Hon’ble Apex Court in the matter of Canara Bank Vs. M. Mahesh Kumar. In compliance of this order, the respondents vide order dated 21.01.2021 again rejected the candidature of the applicant for not fulfilling the educational qualification.

Submission of learned counsel for the applicant is that the applicant’s husband died on 13.10.2018 during service period. The applicant moved a representation for compassionate appointment on 12.11.2018 but the same was rejected vide the impugned order observing that the applicant has not passed High School examination with Mathematics and English. Referring to the impugned order it was further argued that this was passed relying on the circular which was issued vide order dated 08.03.2019 which is not applicable in the case of the applicant as death of the deceased employee took place on 13.10.2018. To substantiate his argument, learned counsel for the applicant referred to the old rule annexed at page no. 86 of the O.A. and argued that on the date of death of the deceased only matriculation certificate was required and there was no any stipulation by that time to have passed the matriculation examination with Mathematics and English subject. The order passed by the respondents is, therefore, illegal and arbitrary. In support of this argument, learned counsel for the applicant has relied on the law laid down by the Hon’ble Apex Court in ‘Canara Bank & Anr V/S M Mahesh Kumar’ (Civil Appeal No. 260 of 2008 decided on 15.05.2015). He has also relied on this Tribunal’s order dated 04.01.2023 in O.A./116/2021 (Sanjay Singh vs. Union of India and others). Thus, request was made to allow the O.A. and set aside the impugned order and also to direct the respondents to reconsider the case of the applicant.

Learned counsel for the respondents argued that although the death of the deceased employee took place on 13.10.2018 but the application was considered in the year 2019, therefore, rule/regulation applicable by that time was taken into consideration. Since the applicant has not passed matriculation examination with Mathematics and English subject, therefore, her candidature was rejected. Thus, there is no illegality in the orders passed by the respondents.

I have considered the rival contentions of learned counsel appearing for both the parties and have gone through the entire documents on record.

Admittedly, in the instant matter, the applicant’s husband was working under the respondents’ department having been appointed on compassionate ground. He died on 13.10.2018 while working as GDSMD Tanda Sahuwala on regular basis. As per the applicant, the application for compassionate appointment was moved by her on 12.11.2018. The respondents themselves have written a letter to the applicant dated 29.11.2018 to fulfill the entire formalities and to submit the proforma. Respondents have passed the impugned order dated 21.01.2021 in compliance of the direction passed in the earlier O.A./983/2020 filed by the applicant mentioning therein that the applicant has not passed 10th standard with Mathematics and English subject. While making the aforesaid observation, the respondents/ competent authority has relied upon communication No. 17-02/2018-GDS dated 08.03.2019.

This Tribunal, setting aside the order passed by the competent authority in O.A./116/2021 (Sanjay Singh vs. Union of India and others) relying on the case of Canara Bank & Anr V/S M Mahesh Kumar supra, has observed that claim of compassionate appointment shall be considered in accordance with law applicable at that time and as per the scheme which was in existence by that time.

In Canara Bank v/s M Mahesh Kumar (supra) case, Hon’ble Supreme Court has held that rule/ regulation/ scheme applicable at the time of death of the concerned employee will be taken into consideration for compassionate appointment. Recently Hon’ble Supreme Court in the case of ‘Delhi Jal Board vs Nirmala Devi’  (Civil Appeal No. 7047 of 2022 Arising from S.L.P. (Civil) No. 20935/2021 decided on 19.10.2022), has clearly held in para 7 as follows:

“7. The submission on behalf of the respondent that as the application for compassionate appointment was permissible within a period of five years and the respondent’s daughter acquired the graduation qualification within a period of five years, the respondent’s daughter can be said to be eligible for appointment on the post of LDC. The aforesaid submission cannot be accepted. Once, the application for compassionate appointment is made, the qualification which the applicant possess on the date of application is to be considered. Similarly, the submission on behalf of the respondent that for compassionate appointments, only the bar with respect to age shall be applicable and not with respect to educational qualification cannot be accepted. The compassionate appointment is required to be made on the post considering the educational qualification of the applicant on the date of application/ dependent of the deceased employee. Therefore, in the facts and circumstances of the case, the department rightly appointed the respondent’s daughter on the post of Assistant Meter Reader considering her qualification at the time of making the application for compassionate appointment.”

If the ratio laid down in aforementioned cases are taken into consideration and compared the same with the facts and circumstances of the present matter, certainly, the communication which has been relied upon by the respondents in passing the order dated 21.01.2021 was not in existence at the time of moving the application for compassionate appointment by the applicant. If such is the position, respondents have wrongly and arbitrarily rejected the candidature of the applicant observing that scheme dated 08.03.2019 requires 10th standard passed candidates with Mathematics and English. If the earlier communication/ scheme applicable before 08.03.2019 is taken into consideration, there was no such type of stipulation in it. Only a matriculation passed candidate was required. Thus, the respondents ought not have rejected the candidature of the applicant on the basis of the communication dated 08.03.2019. The respondents must consider the candidature of the applicant in light of the scheme applicable at the time of moving the application. Thus, I am of the considered view that the respondent in passing the order dated 21.01.2021 has exceeded its jurisdiction and has wrongly relied upon the communication dated 08.03.2019. Order dated 21.01.2021 is liable to be set aside and the O.A. is liable to be allowed.

Accordingly, O.A./300/2021 is allowed. Impugned order dated 21.01.2021 is hereby set aside. The respondents are directed to reconsider the case of the applicant for appointment on compassionate ground in light of the observations made herein above and rules applicable in the matter. The said exercise be completed within a period of four months from the date of receipt of a certified copy of this order.

All associated MAs stand disposed of accordingly. No order as to costs.