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Himachal Pradesh High Court · body

2002 DIGILAW 209 (HP)

ARUN KUMAR v. UNION OF INDIA

2002-07-26

A.K.GOEL, W.A.SHISHAK

body2002
JUDGMENT Arun Kumar Goel, J.—Admitted facts of this case are that Bishan Dass Awasthi was working as a Postman at Post Office, Sundernagar. He died in harness on 28.7.1998. He is survived by his widow, two sons and one daughter. 2. Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India has framed a Scheme for Compassionate Appointment, 1998, whereunder in case of the death of a Government servant like Bishan Dass while in service, a family member of such deceased employee if found eligible under the scheme was entitled to be considered and appointed on compassionate grounds. 3. Petitioner alleges that he being eligible has not been appointed on compassionate grounds. Whereas according to respondents, petitioner is not entitled for such appointment as the condition of family of the deceased was not indigent so as to enable the respondents to allow the benefit of compassionate appointment to him, (the petitioner). 4. At the time of hearing, it was also not disputed that the petitioner applied on 13.10.1998 for appointment on compassionate ground in the aforesaid facts. This prayer was declined vide communication dated 23.2.1999 from the office of Chief Post Master General, H.P. Circle Shimla. A copy of this communication is at page 19 of the paper book. For ready reference this communication is extracted here-in-below: "Sub: Compassionate appointment in relaxation of normal recruitment rules-case of Sh. Arun Kumar son of late Sh. Bishan Dass Awasthi, Ex-Postman-Sunder Nagar HO in Mandi Divn. I am directed to refer to your office letter No. B-2/6/RR dated 17/ 29.2.1999 on the subject noted above and to inform that the case has been examined in this office and the competent authority has observed that the "family members of deceased official are not in indigent circumstances and hence the case is rejected.” 5. After rejection of his claim petitioner preferred O.A. No. 516/HP/ 99 for the grant of appropriate relief. This matter came up for consideration before the Central Administrative Tribunal, Chandigarh Bench, (Circuit at Shimla). Vide its order dated 17.8.2000, the O.A. was dismissed. It may be appropriate to mention here that defence put up by the respondents before the Tribunal was that petitioner is not entitled for the grant of relief prayed for by him, as also his mother has obtained total death claims in the sum of Rs. 1,87,079.00. Vide its order dated 17.8.2000, the O.A. was dismissed. It may be appropriate to mention here that defence put up by the respondents before the Tribunal was that petitioner is not entitled for the grant of relief prayed for by him, as also his mother has obtained total death claims in the sum of Rs. 1,87,079.00. Besides this she is also getting family pension of Rs. 1,760 plus D.A. thereon per month. This plea was accepted and O.A. was dismissed. Hence this writ petition against the said order. 6. Mr. V.D. Khidta, learned Counsel for the petitioner submitted that the Tribunal had fallen into error while rejecting the claim of the petitioner and he further stated that in the circumstances of this case, it cannot be said that family of the deceased was not indigent. In alternative he further submitted that on this ground claim of the petitioner could not have been rejected. With a view to buttress his this submission, learned Counsel for the petitioner submitted that Gram Panchayat, Kataula has issued a certificate (Annexure P5/e dated 25.8.1998) which clearly establishes that for the last five years elder brother of the petitioner Ashwani Kumar was living separately. He was working as a Peon in Himachal Gramin Bank. Regarding land holdings, Mr. Khidta placed reliance on certificate issued by Patwari, Patwarkhana, Tehsil Baijnath, Kangra, which shows that total holdings of deceased was 4 Kanals of land and its annual income is approximately Rs. 2,000. Thus it brings one Kanal each to all of the four heirs, widow, two sons and one daughter. Here another plea submitted by respondents also needs to be noted. They urged that even after the death of his father petitioner was maintaining himself and his family, as such, on this ground he is not entitled to any relief. 7. All the pleas urged on behalf of the petitioner have been controverted by Mr. Vinod Sharma, learned Additional Central Government Standing Counsel. According to him no fault can be found with the impugned order of the Central Administrative Tribunal which deserves to be upheld. 8. Before dealing with the respective submissions of the learned Counsel for the parties, we may advert as to for what purpose Schemes have been framed by the Central Government/State Government as well as Public Sector Undertakings to provide compassionate appointments in case the sole bread winner of the family dies in harness. 8. Before dealing with the respective submissions of the learned Counsel for the parties, we may advert as to for what purpose Schemes have been framed by the Central Government/State Government as well as Public Sector Undertakings to provide compassionate appointments in case the sole bread winner of the family dies in harness. 9. Purpose of this welfare measure is to ensure that in the event of death (as in the present case) of the bread winner of the family, immediate relief is provided to the family so that bread and butter of the family is assured. At the same time, we are also alive of the situation that it is neither an alternate source of employment, nor can be claimed as a matter of right. Each case needs to be examined and then dealt with on its owns facts and circumstances. Otherwise normal rule is that whosoever wants to get into public employment has to come within the frame work of rules governing such employment in the open market. By making provision for compassionate appointment an exception is carved out to the general rule. 10. In addition to this another ground to decline the claim made by a dependent of the deceased employee is, that where there is long gap between the date of death and date of filing application and the dependant/family of the deceased employee had sustained itself for such a long period, as such delay by itself indicates that the immediate requirement of the family has come to an end. Therefore, it disentitles the claim for compassionate appointment after long delay. This is of course subject to provision in the rules. 11. Keeping in view the broad principle, we shall now examine the present case. Mr. Vinod Sharma has produced relevant file for our perusal wherein case of the petitioner was examined. We have gone through file No. R&E/5-96/99, of the Ministry of Communication from the office of Chief Post Master General, H.P. Shimla, on the subject of compassionate appointment case of the petitioner. Only ground that is set up as a defence and appears to have weighed with the Central Administrative Tribunal was, that the family is not in an indigent condition. This disentitled the petitioner from claiming appointment on compassionate grounds. 12. Only ground that is set up as a defence and appears to have weighed with the Central Administrative Tribunal was, that the family is not in an indigent condition. This disentitled the petitioner from claiming appointment on compassionate grounds. 12. In this behalf we may observe that so far grant of pension is concerned, it is neither being given as a concession, nor a bounty either to an employee or to the family of the deceased employee. Reason being that pension is earned by such an employee while being in service after having put in best part of his life given to such service. It is in fact earned by the employee and after rendering a particular years of service he is entitled to get the same. In fact it is property within the meaning of Article 300-A of the Constitution of India. So far retiral or any other benefits granted to the employee/family of a deceased employee are concerned, there position is almost identical to pension. 13. Here clause 16(c) of the aforesaid Scheme for Compassionate Appointment, 1998 also needs to be noted: "16(c) The scheme of compassionate appointments was conceived as far back as 1958. Since then a number of welfare measures have been introduced by the Government which have made a significant difference in the financial position of the families of the Government servants dying in harness/retired on medical grounds. An application for compassionate appointment should however, not be rejected merely on the ground that the family of the Government servant has received the benefits under the various welfare schemes. While considering a request for appointment on compassionate ground a balanced and objective assessment of the financial condition of the family has to be made taking into account its assets and liabilities (including the benefits received under the various welfare schemes mentioned above) and all other relevant factors such as the presence of an earning member, size of the family, ages of the children and the essential needs of the family, etc." 14. As per this clause of the Scheme, it is clear that since 1958 a number of welfare measures have been introduced by the Government for the benefit of family of the deceased Government servant, who dies in harness/retires on medical grounds. As per this clause of the Scheme, it is clear that since 1958 a number of welfare measures have been introduced by the Government for the benefit of family of the deceased Government servant, who dies in harness/retires on medical grounds. As such the application for compassionate appointment should have not been rejected on the ground that the family of the deceased petitioner has received benefit under various welfare scheme. There is nothing on record to suggest as to what was the extent of benefit, if any, given to the family of the deceased under any welfare scheme. Rather authorities are bound to make objective assessment of financial condition of the family taking into account its assets and liabilities including benefit received under various welfare schemes and all other relevant factors as essential needs of the family etc. 15. Assertion of the petitioner that his elder brother is living separately has been duly authenticated as noted above. There is nothing brought on record to show that he is either maintaining or looking after other members of the family of the deceased. Mr. Khidta submitted that the amount that was received after the death of the father of the petitioner was spent in the marriage of his sister, as well as in performing last rites of the deceased and meeting liabilities. It is further pleaded in the writ petition that this source of income is diminishing day by day. There is no satisfactory explanation/plea set up in the reply. Examining the case on the basis of the Scheme formulated by the Central Government, we find that neither the stand taken in reply to O.A. nor in this writ petition on behalf of the respondents was justifiable. Besides this it runs counter to the basic object of framing aforesaid Scheme of 1998. 16. A plea has been raised by Mr. Vinod Sharma that no vacancy is available as such, even if petitioner succeeds in this writ petition, he will get nothing. Before dealing with this submission, we may notice that there is no delay on the part of the petitioner in approaching the authorities for being appointed on compassionate ground. Within less than two months after the death of his father, he submitted his application and when it was declined in March, 1999, he filed the O.A. before the Tribunal. 17. Before dealing with this submission, we may notice that there is no delay on the part of the petitioner in approaching the authorities for being appointed on compassionate ground. Within less than two months after the death of his father, he submitted his application and when it was declined in March, 1999, he filed the O.A. before the Tribunal. 17. Supreme Court while dealing with almost identical situation in the case of Smt. Sushma Gosain v. Union of India, 1989 SC 1976, held as under: "It cannot be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant." After following decision in Smt. Sushma Gosain (supra), in Phoohvati v. Union of India, AIR 1991 SC 469, it was held as under: "Accordingly, we direct the Union of India to take immediate steps for employing the second son of the appellant in a suitable post commensurate with his educational qualification within a period of one month from the date of this order. The appellant shall be permitted to stay in the said quarter where she is at present residing with the members of her family. The appellant will, however, withdraw her application filed before the tribunal. The appeal is thus allowed. There will be no order as to costs." Observations made in Balbir Kaur and another v. Steel Authority of India Ltd. and others and T.K. Meenakshi (Smt.) and another v. Steel Authority of India Ltd. and others, (2000) 6 SCC 493, which are relevant in the context of the present case were as under: "19. Mr. Bhasme further contended that family members of a large number of the employees have already availed of the Family Benefit Scheme and as such it would be taken to be otherwise more beneficial to the employee concerned. We are not called upon to assess the situation but the fact remains that having due regard to the constitutional philosophy to decry a compassionte employment opportunity would neither be fair nor reasonable. We are not called upon to assess the situation but the fact remains that having due regard to the constitutional philosophy to decry a compassionte employment opportunity would neither be fair nor reasonable. The concept of social justice is the yardstick to the justice administration system or the legal justice and as Roscoe Pound pointed out the greatest virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law Courts also to apply the law depending upon the situation since the law is made for the society and whatever is beneficial for the society, the endeavour of the law Court would be to administer justice having due regard in that direction." 18. Nothing to the contrary has been brought to our notice. No other point is urged. In view of the aforesaid discussion, this writ petition is allowed and as a consequence of it, while quashing the decision of the Central Administrative Tribunal in O.A. No. 516/HP/99 dated 17.8.2000 (Annexure PB to the writ petition), it is ordered that respondents shall now re-examine the case of the petitioner in accordance with the aforesaid scheme and what has been said hereinabove; thereafter grant him admissible relief on the basis of the aforesaid discussion and pass appropriate orders in that behalf. This exercise shall be completed on or before 30.9.2002. 19. This writ petition was finally heard after it was admitted and disposed of keeping in view the facts and circumstances of this case as well as on the joint request of the learned Counsel for the parties. Record of file No. R&E/5-96/99 produced by Mr. Vinod Sharma stands returned to him. Writ petition allowed.