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2016 DIGILAW 2769 (ALL)

Amitabh Singh v. Bharat Sanchar Nigam Ltd.

2016-08-10

DILIP GUPTA, MANOJ KUMAR GUPTA

body2016
JUDGMENT The petitioner, who had sought compassionate appointment on death of his father on 6 December 2000 and which application was rejected in 2005, is aggrieved by the order dated 15 May 2015 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad1 rejecting the Original Application filed by the petitioner in 2014. The claim of the petitioner for compassionate appointment was rejected by a detailed order dated 5 February 2005. It is stated that the request of the petitioner for granting compassionate appointment was considered by a High Powered Committee in its meeting held on 10 December 2004. The deceased was survived by his wife, two married sons and one married daughter. The elder son was employed in TCL and the family was living in its own house. The financial condition of the family was considered and taking into account the assets and liabilities and all other factors, the Committee decided to reject the application in accordance with the guidelines dated 9 October 1998 for the reason that the applicant was not found to be under any economic distress. The Tribunal noticed that the Original Application was filed in 2014 even though the application for grant of compassionate appointment was rejected in 2005 and no satisfactory explanation was rendered for this enormous delay. Such being the position and taking into consideration of the fact that the compassionate appointment is granted to tide-over immediate difficulties, that a family of the deceased may face, the Tribunal, therefore, did not consider it appropriate to interfere with the order rejecting the application filed by the petitioner for grant of compassionate appointment. Learned counsel for the petitioner has placed reliance upon a subsequent scheme dated 27 June 2007 to contend that the point system referred to in Clause 4 of the Circular of the Policy guidelines has not been adhered to. As noticed above, the High Powered Committee had referred to the policy guidelines of 1998 and the same has not been enclosed with the writ petition. The subsequent policy guidelines will not, therefore, enure any benefit to the petitioner. Learned counsel for the petitioner then contended that the High Powered Committee has not given any reason for rejecting the application. As noticed above, the High Powered Committee had referred to the policy guidelines of 1998 and the same has not been enclosed with the writ petition. The subsequent policy guidelines will not, therefore, enure any benefit to the petitioner. Learned counsel for the petitioner then contended that the High Powered Committee has not given any reason for rejecting the application. We do not accept this contention on the ground that reasons have been given by the High Powered Committee while rejecting the application filed by the petitioner that the deceased was survived by two married sons and the family was living in its own house. We also do not accept this contention for the reason that the elder brother was employed in TCL and the petitioner was also married and had two sons. The Committee, therefore, found it difficult to believe that the family of the deceased was under any financial distress. This apart, what needs to be noticed is that the compassionate appointment is not a regular mode of recruitment and is provided only to tide-over the immediate difficulties that the family of a deceased may face, as has been observed by the Supreme Court time and again. Recently, a Full Bench of this Court in Shiv Kumar Dubey Vs. State of U.P. & Ors.2, formulated the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules. "(i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved; (ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules; (iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner; (iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment; (v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out; (vi) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner; (vii) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government; (viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family." The Supreme Court in State of J&K & Ors., Vs. Sajad Ahmed Mir3 has also observed that even if the application was moved in time but substantial period of time has expired during the pendency of the petition, it will not be appropriate for the Court to issue any direction for appointment on compassionate ground. The Supreme Court observed as follows: - "In the case on hand, the father of the applicant died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was dismissed by the learned single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. The said fact was indeed a relevant and material fact which went to show that the family survived in spite of death of the employee." This apart, if the petitioner was actually in financial distress, nothing prevented him from filing the Original Application immediately after the rejection of his application for grant of compassionate appointment but what he did is that he waited for a considerable period of nine years after rejection of his application. This is a sufficient ground to deny any benefit of compassionate appointment to the petitioner and indeed the Tribunal was justified in rejecting the Original Application for these reasons. In such circumstances, the petitioner is not entitled to any relief. The writ petition is, accordingly, dismissed.