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2018 DIGILAW 336 (UTT)

Amit Verma v. Union of India

2018-06-20

SHARAD KUMAR SHARMA

body2018
JUDGMENT : The petitioner claims himself to be the dependent of deceased Mr. Om Prakash, who is said to have been working as Head Cashier in the Punjab national Bank, Branch B.S.M. Chowk, Roorkee, Haridwar (Uttarakhand). The petitioner on the strength of being a dependent of Late Sh. Om Prakash, who is said to have died on 04.06.2016, had filed an application for being granted appointment under the harness rules, after the death of his father, exclusively on the ground that he was fully eligible and entitled to get compassionate appointment being exclusively dependent on him, under the “scheme of compassionate appointment to a dependent family member of deceased employee” as applicable to the respondent Bank. 2. The petitioner contends that he has done his High School in the year 1999 and thereafter completed his intermediate in 2004 and owing to the qualification, which he possesses, he is entitled to be considered for compassionate appointment. The mother of the petitioner too has supported the case of the petitioner for appointment on the compassionate ground by filing an application on 22.08.2017 giving her no objection/consent for appointment of the petitioner. As per the averments made in the application for appointment under the dying in harness rules, the petitioner submitted that Late Sh. Om Prakash was succeeded by his widow Smt. Kanta Devi, thereafter the petitioner himself as the eldest son, Shri Sumit (the second son), Smt. Anuradha and Smt. Sonali (the two married daughters of the deceased). 3. In support of his application for getting the compassionate appointment all the family members have given a No Objection Certificate to the effect that if the compassionate appointment is granted to the petitioner they have got no objection to it. 4. It is the case of the petitioner that the application thus submitted for compassionate appointment on 22.08.2017, was duly forwarded by the office of respondent no. 4 to respondent no. 3 through e-mail referring to the proposal and recommendation made on 02.06.2017 for appointment on compassionate ground. It is this proposal which has been sent on 09.02.2018, is said to have been considered by the Headquarter and thereby they have declined to grant the appointment on compassionate ground. 4 to respondent no. 3 through e-mail referring to the proposal and recommendation made on 02.06.2017 for appointment on compassionate ground. It is this proposal which has been sent on 09.02.2018, is said to have been considered by the Headquarter and thereby they have declined to grant the appointment on compassionate ground. On the basis of the communication as made by the Headquarter to the petitioner on 23.02.2018, the following reasons have been assigned in the communication for declining to grant appointment to the petitioner on compassionate ground: “In this regard, we inform that above proposal has been declined by Head Office as it was observed that condition of the family is not indigent.” 5. Having reference to the scheme of compassionate appointment as applicable to the employer Bank, it is not in dispute and rather an admitted fact that under Clause 5 of the Scheme, defines family and its Clause 5.2 includes “wholly dependent son”. But, for the purposes of recruitment it lays down in its Clause 8, the eligibility which is to be considered while dealing with the application for compassionate appointment is quoted hereunder: “8. Eligibility: 8.1 The family is indigent and deserves immediate assistance for relief from financial destitution; and 8.2 Applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules.” 6. According to the eligibility clause, the conditions for consideration of an appointment on compassionate ground is that the family is “indigent” and deserves and immediate assistance by way of financial relief to save destitution of the family. It further postulates under Clause 8.2 that he has to be a suitable and eligible candidate in all respect as per the conditions of the rules. 7. The use of word “indigent” in Clause-8 of the Rules has been utilized with a specific intention. Indigent in its literal meaning means the poor or needy person who is unable to sustain himself in the absence of deprivation of any source of earning. It could also be said that it denotes ‘poor’. The term indigent person came into consideration in the context of its use made under Order 33 Rule 1 of the Civil Procedure Court in a judgment ‘Mathai M. Paikeday vs. C.K. Antony’ as reported in 2011 (XIII) SCC 174. It could also be said that it denotes ‘poor’. The term indigent person came into consideration in the context of its use made under Order 33 Rule 1 of the Civil Procedure Court in a judgment ‘Mathai M. Paikeday vs. C.K. Antony’ as reported in 2011 (XIII) SCC 174. Paragraph-12 of the judgment means it is a person who is ridden by poverty, or not possessed of sufficient means to even pay the Court fee, to seek justice. The same judgment in its paragraph-18 has laid down that indigent person in context of Order 33 Rule 1, is the one who is not possessed of sufficient means to even meet the court fee as prescribed under the law. For the purposes of determining the status of indigent person the judgment of Mathai M. Paikeday (supra) provides that there are various such factors which are to be considered for the purposes of determining the status, total income, the benefits accruing from retiral dues in the form of pension, ownership of realizable unencumbered assets, the indebtedness, the financial assistance received from the family members or close friends. All these factors are to be taken into consideration in order to determine whether a person is possessed with sufficient means or is indigent or not. The same ratio would apply in the cases where dying in harness appointment is to be considered because if a person has a requisite means to survive, the harness appointment may not be provided. 8. According to the definition of the indigent as dealt with in the Black’s dictionary it means a poor person is a person who is found to be financially unable to pay even the fee and that is why the law has also sometime proceeded to provide certain financial assistance to override the crisis. For the purposes of determining the said situation it is necessary that the status of an indigent person as defined under Clause 8 of the Rules of harness appointment has to be considered. 9. The Hon’ble Apex Court in judgment ‘R.V. Dev Alias R. Vasudvan Nair vs. Chief Secretary, Govt. For the purposes of determining the said situation it is necessary that the status of an indigent person as defined under Clause 8 of the Rules of harness appointment has to be considered. 9. The Hon’ble Apex Court in judgment ‘R.V. Dev Alias R. Vasudvan Nair vs. Chief Secretary, Govt. of Kerala and Others’ reported in 2007 (5) SSC 698 yet again dealing with the controversy under Order 33 Rule 1 has provided in its paragraph 8 that the inability of a indigent person is of such a magnitude that if he is not provided with a financial assistance he would fail to pursue his legal remedies in legal proceedings and in the case of compassionate appointment will not be to even meet the bare necessities of life. 10. The above judgment specifically lays down a law that intention of an appointment under the harness rules is not to provide appointment but to relieve the unexpected immediate hardship. This is so because the object of the provisions under the harness rules is not to be put to oblivious that it intends to give succour to the family to tie the sudden financial crisis and not to act as a forum for providing appointment. 11. The Hon’ble Apex Court yet again in another judgment ‘Punjab National Bank & Others vs. Ashwini Kumar Taneja’ reported in 2004 (7) SCC 265 has held in paragraph 4 and 9 that: “4. In support of the appeal learned counsel for the appellants submitted that the approach of the High Court is erroneous. When the object of compassionate appointment is kept in view with reference to the amounts received by the heirs of the deceased employee, it was submitted that there was no financial hardship. Learned counsel for the respondent submitted that the amounts like gratuity, provident fund, etc. have no relevance for determining the question whether compassionate appointment is to be made. It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis. 9. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis. 9. One other thing which needs to be considered is whether the retiral benefits are to be taken into consideration while dealing with prayer for compassionate appointment. The High Court was of the view that the same was not to be taken into consideration. The view is contrary to what has been held recently in G.M. (D&PB) v. Kunti Tiwary. It was categorically held that the amounts have to be taken into consideration. In the instant case, there was a scheme called “Scheme for Employment of the Dependants of the Employees Who Die While in the Service of the Bank – Service on Compassionate Grounds” (in short “the scheme”) operating in Appellant 1 Bank which categorically provides as follows: Financial conditions of the family The dependant of an employee dying in harness may be considered for compassionate appointment provided in the family is without sufficient means of livelihood, specifically keeping in view the following: (a) Family pension. (b) Gratuity amount received. (c) Employee’s/Employer’s contribution to PF. (d) Any compensation paid by the Bank or its Welfare Fund. (e) Proceeds of LIC policy and other investments of the deceased empoloyee. (f) Income of family from other sources. (g) Employment of other family members. (h) Size of the family and liabilities, if any, etc. It is most respectfully submitted that the Board of Directors of the petitioner Bank had approved the above said Scheme, which was based upon the guidelines circulated by Indian Banks’ Association to all the public sector banks which in turn are based upon the law laid down by this Hon’ble Court in the case of Umesh Kumar Nagpal v. State of Haryana’. The scheme after approval was circulated vide PDCL 6/97 read with PDCL 11/99 dated 17.4.1999.” 12. Under the scheme by its Clause 10 though it deals with the relaxation, which employer has been empowered with, to be given by the respondent but the power of relaxation is only vested with regards to the upper age limit to make the candidate eligible to be considered for appointment. Under the scheme by its Clause 10 though it deals with the relaxation, which employer has been empowered with, to be given by the respondent but the power of relaxation is only vested with regards to the upper age limit to make the candidate eligible to be considered for appointment. On scrutiny of the impugned order dated 23.02.2018 the reasons which has been assigned by the Head Office while declining to grant an appointment is as not being indigent person. The extract of the order as passed by the Headquarter being that of 19.01.2018 (Annexure 1 to the counter affidavit of respondent nos. 2 to 4). On reading of the decision taken by the Board, it reads as under: “2. The proposal was considered by the Competent Authority wherein it was observed that the condition of the family is not indigent. The deceased employee left behind 3 members, viz wife and 2 sons. Both sons are working in a private company and earning Rs. 5000/- each. The applicant is married and having a family of 3 (wife and 2 children). The family is in receipt of terminal dues of Rs. 13.56 lacs plus other receivable of Rs. 0.93 lacs. They are in receipt of family pension of Rs. 13069/- p.m. and they have own accommodation. Employee had remaining service of only 6 months.” 13. The Headquarter has declined the appointment on the ground that the conditions of the family in view of their financial status cannot be said to be indigent as contemplated under Clause 8. It was further observed that the deceased employee has left his wife and two sons and both the sons are employed in private companies and are earning, its not that they have no source of earning. As far as applicant/petitioner is concerned, he has a family inclusive of wife and two children and after considering the fact that the family is the recipient of the terminal dues of Rs. 13.56 lacs and other benefits, coupled with the fact that family is also recipient of the family pension @ Rs. 13,069/- and having their own accommodation, they cannot be treated as to be indigent person. Accordingly, the claim was rejected. 14. 13.56 lacs and other benefits, coupled with the fact that family is also recipient of the family pension @ Rs. 13,069/- and having their own accommodation, they cannot be treated as to be indigent person. Accordingly, the claim was rejected. 14. This Court is of considered view that the purpose of the dying in harness rules or the compassionate appointment under the scheme is with an intention to tied away an immediate crisis, which has befallen on the family on account of an untimely death of the bread earner of the family. The appointments under the harness rules are rather an appointment which is made by bypassing the regular process of appointment and granting leverage in the recruitment process to the applicants under the harness rules at the cost of depriving an opportunity to other who are otherwise eligible and craving for appointment. Merely because there has chanced a death in a family that in itself ought not to be taken as the basis for appointment under the compassionate rules as compared to the other such similarly situated citizens of the country, who are in the quest of appointment who have to undergo a regular process of recruitment and they are unable to get the leverage of overriding the process of recruitment merely because of the fact that no causality has taken place in their family. As a matter of fact, looking to the situation where a family is not in an utmost financial crisis, in that eventuality, claiming for an appointment under the compassionate ground itself defeats the very purpose and intention of the scheme of appointment under harness rules, which would stand frustrated if such an appointment is made at the cost of other persons who are claiming for the appointment. 15. The learned counsel for the respondent had placed reliance on catena of judgments dealing with the issue pertaining to the circumstances under which the appointments under the harness rules are to be considered by the appointing authority. In a pronouncement as laid down by the Hon’ble Apex Court in the case of Umesh Kumar Nagpal vs. State of Haryana reported in (1994) 4 SCC 138 the Hon’ble Apex Court has held that the basic purpose and object of the compassionate appointment is to enable the penurious family to tied over the certain financial crisis. It never intends to provide an employment. It never intends to provide an employment. It has held in its paragraph 2 that the object is not often to appointment but before a Government or a Public Authority considers the grant of appointment, it is mandatory to examine the financial conditions of the family of the deceased and it is only when the satisfaction is recorded to the effect that the family will not be able to survive or met the crisis in the absence of being provided with a source of earning the compassionate appointments could be made. Paragraph 2 of the judgment is quoted hereunder: “2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and met-it. No other mode of appointment nor any other consideration is Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the Change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. 4. …..The only ground which can justify compassionate employment is the penurious condition of the deceased’s family. Neither the qualifications of his dependant nor the post which he held is relevant. It is for this reason that we are unable to understand the following observations of the High Court in the impugned judgment: “We are of the view that the extraordinary situations require extraordinary remedies and it is open to the Government in real hard cases to deviate from the letter and spirit of the instructions and to provide relief in cases where it is so warranted. To hold as a matter of law that the Government cannot deviate even minutely from the policy of providing appointment only against Class III and Class IV posts, would be to ignore the reality of life these days. It would be ridiculous to expect that a dependant of a deceased Class I Officer, should be offered appointment against a Class III or Class IV post. While we leave it to the Government to exercise its discretion judiciously in making appointments to Class I or II posts on compassionate grounds, yet a word of caution needs to be struck. It is to be noted that such appointments should be ordered in the rarest of rare cases, and in very exceptional circumstances. As a matter of fact, we would recommend that the Government should frame a policy even for such appointments. 6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.” 16. For the reasons above, I do not find any anomaly or error in the impugned order of rejection for the claim of compassionate appointment. As such, the Writ Petition lacks merit and is dismissed. 17. However there would be no order as to cost.