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Madhya Pradesh High Court · body

2011 DIGILAW 657 (MP)

Vinod Kumar Sharma v. Union of India

2011-06-21

S.K.GANGELE, SHEEL NAGU

body2011
JUDGMENT : Heard. Petitioner has filed this petition against the order dated 27th September 2007 passed by the Central Administrative Tribunal, Gwalior Bench in O.A. No. 493 of 2006, Annexure P-25. 2. Father of the petitioner was serving as Peon, a class IV employee, in the Head Post Office, Morena. He died on 15.11.2001. After death of his father petitioner submitted in application for compassionate appointment on appropriate post. That application has been rejected by the Authority. Against the order of rejection of his application the petitioner filed an application before the Central Administrative Tribunal, which was registered as OA No. 859/04 and disposed of vide order dated 18th October 2005 with a direction to pass a detailed speaking order in regard to entitlement of the petitioner for compassionate appointment. Thereafter, a detailed order was passed and his application has again been rejected on the ground that petitioner does not come within the category if indigent family. Against the aforesaid order the petitioner again filed a petition before the Central Administrative Tribunal which has been rejected by the impugned order. Copy of the Scheme for compassionate appointment dated October 9,1998 has been filed as Annexure R -1 by the respondents before the Central Administrative Tribunal. Note No. 1 thereof prescribes Dependent Family Member', which is as under: "Note 1. "Dependent Family Member" means (a) Spouse; or (b) son (including adopted son); or (c) daughter (including adopted daughter) ;or (d) brother or sister in the case of unmarried Government servant or member of the Armed Forces referred to in (A) or (B) of this para, who was, wholly dependent on the Government servant member of the Armed Forces at the time of his death in harness or retirement on medical grounds, as the case may be." Clause 5 of the policy prescribes the eligibility criteria which is as under: "5. ELIGIBILITY (a) The family is indigent and deserves immediate assistance for relief from financial destitution and (b) Applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules. 3. From the aforesaid criteria it is clear that if the family is indigent then one family member is eligible to be considered for compassionate appointment. 3. From the aforesaid criteria it is clear that if the family is indigent then one family member is eligible to be considered for compassionate appointment. The department rejected the application of the petitioner on the ground that petitioner does not fall within the definition of indigent family, In support of the aforesaid reasoning it has been mentioned that the petitioners family received an amount of Rs. 1,19,955/- as terminal benefit of the deceased employee and the family had also been receiving pension of Rs. 2200/- plus dearness allowance per month. The petitioner has specifically stated, that at the time of death the deceased employee left behind him the following family members (i) Smt. Shakuntala Devi - Wife (ii) Smt. Sharda, a married daughter (iii) Vinod Kumar, son, present petitioner and (iv) Vijay Kumar, son, who is also employed. The family has only agricultural land of.36 hectare. The family members received following post retiral benefits of the deceased employee - "D.C.RC... Rs.52,548.00 GPF... Rs. 12,630.00 GIS... Rs. 19,015.00 Encashment of leave... Rs. 35,762.00 Total- Rs.1,19,955.00 4. No details have been prescribed in the scheme of compassionate appointment m regard to indigent family. 5. The Hon'ble Supreme Court in the case of Govind Prakash Verma Vs. Life Insurance Corporation of India and others, reported in 2005 (2) SCSLJ 102, has held that the service benefits received by the legal representatives of the deceased employee cannot be a ground to deny compassionate appointment. The relevant findings of the Hon'ble Supreme Court are as under: - "6. In our, view, it was wholly irrelevant for the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according o the appellant, has now been reduced to half) and other amounts, paid on account of terminal benefits under the Rules. The scheme of compassionate appointment is even and above whatever is admissible to the legal representatives of the deceased, employee as benefits of service which on gets on the death of the employees. Therefore, compassionate appointment cannot be refused, on the ground that any member of the family received the amounts admissible under the Rules. So far as the question of gainful employment of the elder brother is concerned, we find that it had been given out that he has been engaged in cultivation. Therefore, compassionate appointment cannot be refused, on the ground that any member of the family received the amounts admissible under the Rules. So far as the question of gainful employment of the elder brother is concerned, we find that it had been given out that he has been engaged in cultivation. We hardly find that it could be considered as gainful employment if the family owns a piece of land and one of the members of the family cultivates the field. This statement is said to have been contradicted when it is said the elder brother had stated that he works as a painter. This would not necessarily be a contradiction much less leading to the inference drawn that he was gainfully employed somewhere as painter. He might be working in his field and might casually be getting work as painter also. Nothing has been indicated in the enquiry report as to where he was employed as a regular painter. The other aspects, on which the officer was required to make enquiries, have been conveniently omitted and not a whisper is found in the report submitted by the officer. In the above circumstances, in our view, the orders passed by the High Court are not sustainable. The respondent have wrongly refused compassionate appointment to the appellant. The inference of gainful employment of the elder brother could not, be acted upon. The terminal benefits received by the widow and the family pension could not be taken into account." 6. The Hon'ble Supreme Court has further held in the case of State Bank of India and another vs. Raj Kumar, (2010) 11 SCC 661 , as under: - "11. 'Normal schemes contemplate compassionate appointment on an application by a dependent family member, subject to the applicant fulfilling the prescribed eligibility requirements, and subject to availability of a vacancy for making the appointment. Under many schemes, the applicant has only a right to be considered for appointment against a specified quota, even if he fulfills all the eligibility criteria; and the selection is made of the most deserving among the several competing applicants, to the limited quota of posts available. In all these schemes there is a need, to verify the eligibility, and antecedents of the applicant or the financial capacity, of the family. In all these schemes there is a need, to verify the eligibility, and antecedents of the applicant or the financial capacity, of the family. There is also a need for the applicant to wait in a queue for a vacancy to arise, or for a Selection committee to assess the comparative need of a large number of applicants so as to fill a limited number of earmarked vacancies." 7. The Hon'ble Supreme further in the case of Bhawani Prasad Sonkar Vs. Union of India and others (2011) 4 SCC 209 , has further held as under: - "20. Thus, while considering a claim for employment on compassionate ground the following factors have to be borne in mind: (i) Compassionate, employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme, (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be. (iv) Compassionate appointment is permissible only to one of the dependents of the deceased/incapacitated employee viz, parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts." 8. As per the aforesaid judgments of the Hon'ble Supreme Court the service terminal benefits received by the, legal representatives of the deceased employee cannot be taken into consideration to deny the compassionate appointment. Hence, the order of refusal to consider the case of the petitioner for compassionate appointment. Annexure P -12 is bad in law. 9. Consequently, the petition of the petitioner is allowed. The impugned order, Annexure P-12 and the order passed by the Central Administrative Tribunal, Annexure P - 25 are hereby quashed. Hence, the order of refusal to consider the case of the petitioner for compassionate appointment. Annexure P -12 is bad in law. 9. Consequently, the petition of the petitioner is allowed. The impugned order, Annexure P-12 and the order passed by the Central Administrative Tribunal, Annexure P - 25 are hereby quashed. The respondents are directed to consider the case of the petitioner in accordance with law. No order as to costs.