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2006 DIGILAW 339 (ORI)

Dillip Kumar Nayak v. Union of India

2006-04-26

I.M.QUDDUSI, PRADIP MOHANTY

body2006
JUDGMENT I. M. QUDDUSI, J. : The claim of the petitioner before the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.771 of 1996 was rejected vide judgment and order dated 28.6.2000. The review application filed before the Tribunal, which was registered as Review Application No.26 of 2000, was also dismissed vide order dated 29.8.2002. Therefore, the peti¬tioner has approached this Court for a direction to the opposite parties to give him appointment on compassionate ground under the Rehabilitation Assistance Scheme. 2. The brief facts of the case are that the father of the petitioner, while working as Postal Assistant (H.S.G.) in the Cuttack G.P.O. under the administrative control of the Senior Superintendent of Post Offices, Cuttack City Division, Cuttack, died on 4.5.1995 leaving behind seven children including the petitioner. The eldest son of the deceased, namely, Kabisurya Nayak, who is the elder brother of the petitioner, had got em¬ployment during the life time of his father under the Railway Administration and started living separately from the month of August, 1989. It is alleged that the father of the petitioner was the sole bread earner of the family. As the condition of the family was indigent, the petitioner applied before the competent authority to provide him appointment on compassionate ground under the Rehabilitation Assistance Scheme, but the same was rejected by opposite party No.3, i.e., Senior Superintendent of Post Offices, Cuttack Division, Cuttack vide order dated 4.12.1995 on the ground that his elder brother was already work¬ing under the Railways and getting salary of Rs. 3670.00 per month and his mother was also getting pension at the rate of Rs. 900.00 per month. As such, the family was not in an indigent condition requiring compassionate appointment. The petitioner again made a representation agitating his grievance in the month of January 1996 but no action was taken. His mother filed an appeal before the Chief Post Master General, Orissa Circle. The petitioner also approached the Director General who referred the matter to the Circle Office, Bhubaneswar and the same was again rejected on the ground that the Circle Relaxation Committee had already considered his case and rejected the same. Thereafter he filed the aforesaid O.A. before the Tribunal stating therein that the Revenue Inspector had made enquiry and submitted a report that the eldest son of the deceased was living separately from the family since long. Thereafter he filed the aforesaid O.A. before the Tribunal stating therein that the Revenue Inspector had made enquiry and submitted a report that the eldest son of the deceased was living separately from the family since long. Besides, the Sarpanch of the Grama Pan¬chayat of the petitioner had also granted a certificate in that regard, but the same was not considered. It was further averred that the Circle Relaxation Committee took into account the gratu¬ity amount of Rs. 83,000/- and family pension of Rs. 900/- per month paid to the widow after the death of the deceased. It also took into account the annual income of Rs.2000/- from agricultur¬al source and the fact that the elder brother of the petitioner was already in employment under the Railway Administration. Ultimately, the Circle Relaxation Committee held that the peti¬tioner’s family was not in distressed condition and so it reject¬ed the prayer of the petitioner. Feeling aggrieved, the petitioner approached the Central Administrative Tribunal but his claim was rejected, as mentioned above. 3. We have perused the impugned judgment and order passed by the Tribunal. It was found by it that on the death of the deceased postal employee, his widow was sanctioned gratuity amounting to Rs. 83,000/- and some odd and she is also getting pension of Rs. 900/- per month in addition to usual allowances. Besides, she has an annual income of Rs.2000/- from agricultural land. Lastly, it has been stated that the first son of the de¬ceased postal employee is employed under the Railways and is getting salary of Rs.3670/- per month. On the above grounds it is stated that the family is not indigent. The thrust of argument of the petitioner is that his elder brother, who is employed under the Railways at Mancheswar, having been separated from the fami¬ly,the compassionate appointment should not be denied to him on that ground. The Tribunal has given the following findings : (1) The elder brother of the petitioner is working under the Railways at Mancheswar. It is only natural that he is staying at Mancheswar with his family. From this, it does not follow that he has been separated from the family and therefore, the departmental authorities have reasonable ground for holding that elder brother has not been separated from the family of the deceased postal employee. It is only natural that he is staying at Mancheswar with his family. From this, it does not follow that he has been separated from the family and therefore, the departmental authorities have reasonable ground for holding that elder brother has not been separated from the family of the deceased postal employee. (2) Whether separation has actually taken place or not is a matter to be decided by the Civil Court and not by the Tribunal. (3) Even granting for argument sake that the elder brother has actually been separated from the family, that itself would not justify a claim for compassionate appointment. (4) Moreover, the departmental authorities have come to the conclusion that the family is not indigent. 4. The general principle for providing compassionate appointment under the Rehabilitation Assistance Scheme is that at the time of death of the deceased, it is to be seen as to who are his dependents and what was their need. Further, whether the income from all sources after the death of the deceased could meet the requirements of the family members who were dependents on him. 5. In the instant case, we find that the eldest son of the deceased, i.e., the elder brother of the petitioner, had got employment under the Railways and was separated from his father during his life time. It has also come on record that the said eldest son is living with his family at Mancheswar. In that case, it is but natural that the money earned by him as a Railway employee cannot come to the disposal of the dependents of the deceased employee as the first right over his salary would be of his wife and children. Therefore, it cannot be expected that he would provide any financial assistance to the dependents of the deceased. 6. In the case of Balbir Kaur and another v. Steel Author¬ity of India Ltd. and others, AIR 2000 SC 1596 , the Hon’ble apex Court has held as under : “Mr. Therefore, it cannot be expected that he would provide any financial assistance to the dependents of the deceased. 6. In the case of Balbir Kaur and another v. Steel Author¬ity of India Ltd. and others, AIR 2000 SC 1596 , the Hon’ble apex Court has held as under : “Mr. Bhasme, learned Advocated appearing for the Steel Authority contended that the Family Benefit Scheme was introduced on 21st November, 1992 and the salient features of the Scheme were to the effect that the family being unable to obtain regular salary from the management, could avail of the scheme by deposit¬ing the lump sum provident fund and gratuity amount with the company in lieu of which the management would make monthly pay¬ment equivalent to the basic pay together with dearness allowance last drawn, which payment would continue till the normal date of superannuation of the employee in question. Mr. Bhasme further contended that adaptation of this Family Benefit Scheme was meant to provide an assured or regular income per month, while the bulk amount deposited by way of provident fund and gratuity with the management remained intact. Mr Bhasme, contended that consequent¬ly on deposits as above, with the management, the employee’s family could avail of pay up to normal date of superannuation on the footing that the employee though not actually working but notionally continued to work till the normal date of superannua¬tion and such a scheme in fact stands at a much better footing and much more beneficial to an employee or a deceased employees. Apparently these considerations weighed with the High Court and the latter thus proceeded on the basis that by reason of adapta¬tion of a Family Benefit Scheme by the Employees Union, question of any departure therefrom or any compassionate appointment does not and cannot arise. But in our view this Family Benefit Scheme cannot be in any way equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump sum amount being made available to the family. This is rather unfortunate but this is a reality. But in our view this Family Benefit Scheme cannot be in any way equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump sum amount being made available to the family. This is rather unfortunate but this is a reality. The feeling of security drop to zero on the death of the bread earner and insecurity thereaf¬ter reigns and it is at this juncture if some lump sum amount is made available with a compassionate appointment, the grief stick¬en family may find some solace to the mental agony and manage its affair in the normal course of event. It is to that monetary benefit would be the replacement of the bread earner, but that would undoubtedly bring some solace to the situation. 7. The deceased was having a burden of eight family mem¬bers, i.e., his wife and seven children (including the eldest son who was living separately due to his own family set up) and hence, the authorities should have considered the case of the petitioner for granting him compassionate appointment under the Rehabilitation Assistance Scheme taking into account the income of the deceased during his life time and the income of the de¬pendents of the deceased after his death. If there was some agricultural income, it cannot be said that the said income started after the death of the deceased. It must have existed in the life time of the deceased also. Whether the family pension at the rate of Rs. 900/- per month is sufficient for eight family members in comparison to the income of the deceased during his life time and whether the amount of gratuity given to the widow of the deceased would be utilized for the livelihood of the family or it is likely to be utilized for the propose of mar¬riages of the daughters, in case, there was any unmarried daugh¬ter of the deceased should have also been considered by the au¬thorities, which has not been done. 8. In view of the above, the authorities concerned should reconsider the question of grant of compassionate appointment to the petitioner under the Rehabilitation Assistance Scheme but only after verifying the above mentioned facts, that too in case the other dependents of the deceased give consent to provide compassionate appointment to the petitioner in his favour. 9. 8. In view of the above, the authorities concerned should reconsider the question of grant of compassionate appointment to the petitioner under the Rehabilitation Assistance Scheme but only after verifying the above mentioned facts, that too in case the other dependents of the deceased give consent to provide compassionate appointment to the petitioner in his favour. 9. In the result, the writ petition is allowed in part. The impugned judgment and order passed by the Tribunal is quashed. The rejection order made on the representation of the petitioner for compassionate appointment is also quashed. A writ mandamus is issued commanding the opposite parties to consider the question of grant of compassionate appointment to the petitioner in accordance with law in the light of the obser¬vation made above. PRADIP MOHANTY, J. I agree. Petition allowed in part.