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2017 DIGILAW 2946 (ALL)

UNION OF INDIA v. SURYA PRAKASH PANDEY

2017-12-15

NEERAJ TIWARI, RAN VIJAI SINGH

body2017
JUDGMENT By the Court.—We have heard Shri B.K. Singh Raghuvanshi, learned counsel for the petitioners. No one appears on behalf of the respondents, although, name of Sri Anil Yadav has been shown in the cause list as counsel for the respondent. 2. This writ petition has been filed for issuing a writ of certiorari quashing the judgment and order dated 11.2.2011 passed by the Central Administrative Tribunal, Allahbad Bench, Allahabad in Original Application No. 749 of 2009 (Surya Prakash Pandey v. Union of India and others), by which the order/decision of the screening committee dated 21.9.2007, rejecting the respondents’ application for compassionate appointment, has been set aside. 3. The facts of the case in brief are that the father applicant-respondent was working as Inspector with the Central Excise Department and while working as such, he died on 19.11.2001. Immediately after the death of his father, with the consent of his mother, he filed an application for compassionate appointment on 24.4.2001 on the basis of the prevailing policy of the Government. 4. It appears that the application was kept pending for three years and after expiry of three years, the screening committee refused to consider the case of the respondent-applicant on the ground that more than three years have expired. The decision was taken in terms of the Office memorandum of Department of Personnel & Training (DOPT). 5. The Tribunal, while dealing with the matter, found that it is violative of Articles 14 and 16 of the Constitution of India and allowed the claim petition of the respondent-applicant by setting aside the order dated 5.5.2002 with the following direction : “In view of the settled law, decision of the Screening Committee dated 21.9.2007 which was conveyed by the Administrative Officer Central Excise, Allahabad vide its order dated 5.5.2009 rejecting the claim of the applicant Committee (Annexure A-1) are set aside and quashed with the following directions at (i), (ii) & (iii) below to comply with eight weeks of receipt of certified copy of this order. (i) the case of the applicant will be kept open till it comes up for consideration on merit. (ii) A wait list of applicant be published in the order of date of application and be provided to the applicant and also displayed on the office notice board. (i) the case of the applicant will be kept open till it comes up for consideration on merit. (ii) A wait list of applicant be published in the order of date of application and be provided to the applicant and also displayed on the office notice board. (iii) As and when the case of the applicant is considered a reasoned and speaking order disclosing full proceeding and result of the selection process will be declared for all interested applicant to see. The selection process has to be as per rule and based on objective parameters.” 6. Learned counsel for the petitioners contended that the Tribunal has erred in setting aside the decision of the screening committee, which was based on the Office memorandum of Department of Personnel & Training (DOPT). In his submissions, the purpose of compassionate appoint is to save out the family from financial crunch at the earliest possible time and after lapse of many years, it cannot be said that the family of the deceased is still in financial crunch. Therefore, looking into the non-availability of the vacancy and number of applications for compassionate appointment, the Office memorandum of Department of Personnel & Training (DOPT) was issued, and taking note of that, the screening committee has rightly refused to consider the case of the respondent-applicant as three years have already expired. 7. We fail to understand that if the application was filed well within time and the Department was at fault in not considering the application for compassionate appointment well within time, may be due to non-availability of vacancy, in that eventuality, it was incumbent upon the Department to prepare a wait list and as and when vacancy occurs, the case of the persons falling in the wait list ought to have been considered. It cannot be said unilaterally that after lapse of time, the condition of the family become good or workable without going through the detail facts of each application and the financial condition of their family. The survival is the law of nature and a person, who is not in the employment, also survives, but the moot point, which needs consideration, is as to whether the dependent of the deceased has survived as intended by the employer or has faced a lot of hardship and mental agony, etc. The survival is the law of nature and a person, who is not in the employment, also survives, but the moot point, which needs consideration, is as to whether the dependent of the deceased has survived as intended by the employer or has faced a lot of hardship and mental agony, etc. The financial conditions of each applicant may be different and may vary from person to person and family to family. Therefore, every applicant cannot be scaled on same parameter that three years period has expired and therefore, there is no need to consider their claims. 8. One of us (Justice Ran Vijai Singh), while sitting singly, in a writ petition, being Civil Misc. Writ Petition No. 11507 of 2006 (Surendra Prasad Gond v. Union of India and others) decided on 27.11.2006, while dealing with such matter, has observed as under: “Although it is well-settled by numerous decision of this Court as well as of the Apex Court that no appointment on compassionate ground be made after lapse of long time but in the present case it has to be examined whether on any kind of lapse, (long delay in appointment) may be, on the part of the respondents the appointment on compassionate ground cannot be made. I am afraid that if the long lapse of time irrespective of lapse on whose part is taken into consideration for the purposes of ignoring the appointment on compassionate ground then it would lead to in justice as in each and every case the respondents may cause delay in considering the appointment on compassionate ground and then come with the case that long delay has occurred, therefore, it cannot be said that family is still in financial crunch and no appointment on compassionate ground be offered to the dependent of the deceased. It is noticeable that this kind of appointment is offered to a person in exception of normal mode of recruitment of service. This is special kind of benefit extended by the (legislator) employer in favour of the dependents of the deceased employee who had been serving in the department with the utmost devotion and contributed in the smooth working of the department. This is special kind of benefit extended by the (legislator) employer in favour of the dependents of the deceased employee who had been serving in the department with the utmost devotion and contributed in the smooth working of the department. Like the duty of the disciplined parent to their dependents the employers are also supposed to behave/act, quickly, promptly and softly with the dependents of the deceased of their own department within four corner of law, where a person seeking appointment is in crisis after the death of the employee. Their act has to be transparent reasonable and prompt while considering this kind of matter. Otherwise the purpose of the legislature will be defeated. To my mind every care and caution as required under law has to be weighed and followed in its true prospective promptly without any delay. So far as Banaras Hindu University is concerned from perusal of the record it transpires that in the University this kind of benefit has been extended to the dependents of the deceased since 1958 and it is appreciable that the 2003 Rule is more comprehensive having all details and had been framed without leaving any lack of guidance with regard to the consideration of financial position and the employment of other dependents of the family of the deceased in other services. While considering the aspect of long lapse of time, it has to be seen that during this long time how the family has survived. The distress, the pain, the misery and the mental agony which the family has faced during this time has also to be weighed by the authorities particularly in the circumstances where the lapse is on their part. Mere survival for a long time is not sufficient for the purposes of ignoring the appointment under dying-in-harness Rules. The survival is the law of nature, a person will survive irrespective of the fact whether he is employed or not. It is very often said that time and tide wait for none. It will pass away in its own way. There are many persons who are not in employment and without means even then they are surviving. The survival is the law of nature, a person will survive irrespective of the fact whether he is employed or not. It is very often said that time and tide wait for none. It will pass away in its own way. There are many persons who are not in employment and without means even then they are surviving. To my mind, while considering this type of a problem the paramount consideration should be the following of law in its true, letters and spirit meaning thereby the quick and prompt steps has to be taken by the responsible persons under the Rules while considering the appointment under dying-in-harness rule. The delay in considering such appointment will defeat the purpose of the Rule and put the family of deceased in distress which is not the spirit of Rule and intention of the legislature (the maker of the Rule)” 9. In case the vacancies were not available within the reasonable time and according to the petitioners, within three years, in that eventuality, in case the Department was really serious to save out the dependents of the deceased from the financial crunch, in that eventuality, some other via-media ought to have been searched out, as in different Departments, we have seen that there is a provision granting ex gratia amount for saving out the family of the deceased from financial crunch. In our view, where the Department finds that even after number of years, vacancies are not available, in that eventuality, some ex gratia amount is to be paid to the dependents of the deceased in order to save out the family from the financial penury. 10. In view of the foregoing discussions, we are of the view that the Tribunal has rightly set aside the order/decision of the screening committee and we do not find any error in the same. The writ petition lacks merits and it is hereby dismissed.