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2018 DIGILAW 798 (CAL)

Swapna Roy v. Union of India

2018-11-15

SAMBUDDHA CHAKRABARTI

body2018
JUDGMENT : 1. Let the report in the form of an affidavit filed by the respondent no. 3 in Court today be kept with the record. 2. The predecessor-in-interest of the petitioners was an employee of the Food Corporation of India (the Corporation, for short). The petitioner no. 1 is his widow and the petitioner no. 2 is his son. 3. Their predecessor-in-interest while working in the Corporation had a premature death in October, 2002. Shortly thereafter the petitioner no. 1 made an application to the respondents authorities for appointment of petitioner no. 2 on compassionate ground. There have been series of correspondence between the petitioners and the respondents for all these years and ultimately by a communication dated December 19, 2017 the Assistant General Manager, i.e. the respondent no. 5 informed the respondent no. 1 that the candidature of her son had been rejected by the concerned committee for appointment on compassionate ground as the income of the family as per the income certificate was Rs.2,16,000/- per year which exceeded the benchmark of financial criteria taken by the committee. 4. The report filed by the respondent no. 3 refers to the guidelines followed by the Corporation in the matter of appointing on compassionate ground. A part of this circular dated March 26, 2013 of the Government of India have been quoted in the affidavit which do not specifically lay down any rigid financial criteria for offering appointment to a dependant member of the family of a deceased employee. However, it is necessary to record that so far as the eligibility for getting an appointment is concerned it was specifically mentioned that in deserving cases even when there was already an earning member in the family a dependant family member may be considered for compassionate appointment in accordance with the procedure as mentioned therein. The circular further recorded that while considering a request for appointment on compassionate ground a balance and objective assessment of the financial condition of the family had to be taken into consideration along with various other relevant factors. 5. Paragraph 8 of the report is of particular importance. It says that the “policy provides” that compassionate appointment can be given to the applicant only if the family of the deceased employee lives in penury or is facing extreme financial destitution. 5. Paragraph 8 of the report is of particular importance. It says that the “policy provides” that compassionate appointment can be given to the applicant only if the family of the deceased employee lives in penury or is facing extreme financial destitution. The minimum educational qualification for the concerned post is graduation and the minimum rate of monthly wage for the graduates as declared by the Delhi Government is taken by the committee as a relevant benchmark. “Thus, an applicant having annual income less than the amount fixed by the Delhi Government for graduates from time to time is considered for appointment on compassionate ground subject to fulfillment of other conditions”. The committee constituted for considering the case of the petitioner no. 2 found that the income of the mother of the petitioner was Rs.2,16,000/- per annum which was much higher than the minimum rate of wages fixed by the Government of Delhi. Thus, he was not found to be a deserving candidate for appointment on compassionate ground and, therefore, his candidature was rejected. 6. A copy of the notification issued by Government of Delhi has been annexed to the report as Annexure – R/2. This has nothing to do with the income slab of the family for determining the propriety of appointing a dependant, ward of a deceased employee. All that it does is that it merely revises the minimum rate of wages for certain classes of employees as per All India Consumer Price Index Series of 2001. There is absolutely nothing in the report that these minimum rates of wages had been accepted as the Corporation disentitling an applicant to be considered for appointment on compassionate ground. Much assertion to the contrary notwithstanding, it is not clear from the affidavit how and when, if at all, the authorities of the Corporation had fixed Rs.18,000/- per month as the “benchmark” for determining the eligibility of an applicant for compassionate appointment. That notification was issued by the authority in exercise of the power conferred under Section 5(2) of the Minimum Wages Act. If the Corporation wanted to adopt this as the maximum family income beyond which no appointment on compassionate ground could be offered by him, it was incumbent upon the authorities to formulate the same by way of a policy. 7. If the Corporation wanted to adopt this as the maximum family income beyond which no appointment on compassionate ground could be offered by him, it was incumbent upon the authorities to formulate the same by way of a policy. 7. While it is true that no appointment on compassionate ground can be offered by an employer in the absence of or beyond the scope of the scheme for it, it is equally true that a lacuna in the scheme cannot be filled up arbitrarily. That will be giving a wide range of discretion to the authorities for deciding the eligibility of a candidate. On being asked by the Court Mr. Kundu, the learned Advocate for the respondents submitted that there is no order or scheme of the Corporation laying down that a candidate having a family income of more than Rs.18,000/- per month shall be disentitled to appointment on compassionate ground. Mr. Sanyal, the learned Senior Counsel appearing for the respondents has produced in Court a communication dated November 14, 2018 issued by the respondent no. 5 to Mr. Kundu, the learned Advocate for the respondents. The communication says that the marginal difference of the income of the mother of the petitioner no. 2 cannot be a strong ground for considering his case as such appointment, if given, will definitely deviate from the criteria followed for assessment of penurious condition of other candidates who have not been considered earlier. It also mentions some other grounds why appointment to the petitioner no. 2 cannot be offered. But since they have not been mentioned in the report in the form of an affidavit, the Court does not take any cognizance of that. 8. However, one thing strikes out that the respondent no. 5 has specifically mentioned that any deviation from the laid down instruction/guidelines of Government of India is not possible in a single case. As mentioned before, both the learned Advocates for the respondents clarified very candidly that there is no criteria laid down either issued by the Corporation or by the Government of India for determining the eligibility of a candidate for appointment on compassionate ground. The report is also absolutely silent about why the minimum wage determined by the Government of Delhi has been allegedly followed by the Corporation for determining such eligibility. The report is also absolutely silent about why the minimum wage determined by the Government of Delhi has been allegedly followed by the Corporation for determining such eligibility. Determination of minimum wage being linked to price index is always a variable quantum, not only from year to year but also from region to region. 9. Moreover, if the authorities wanted to rely on a certain amount as the “benchmark” for considering the eligibility of a candidate they were required to specifically provide it in the relevant scheme or by way of an office order. It could not be left to the discretion of a certain committee constituted for considering the candidature for appointment on compassionate ground. As mentioned earlier in paragraph 8 the respondent no. 3 has specifically mentioned that an applicant having an annual income less than the amount fixed by the Government of Delhi for graduates is considered for appointment on compassionate ground. Where is this consideration laid down that the respondent no. 3 had affirmed this paragraph as matter of record? Where is that record that has fixed Rs.18,000/- as the cut off family income beyond which a member of such a family cannot be appointed on compassionate ground ? 10. Mr. Sanyal referred to the scheme for compassionate appointment which has been annexed to the report as part of Annexure – R/1. The eligibility of a candidate for such appointment is that the family must be indigent and deserves minimum assistance for relief and that such a candidate should be eligible and suitable for the post in all respects under the relevant Recruitment Rules. Mr. Sanyal relied on Clause 9 (c) of the said scheme which says that the onus of examining the penurious condition of the dependant family will rest with the authority of making compassionate appointment. After that there is a reference to paragraph 4 of a certain office memorandum dated July 26, 2012. 11. This clause 9 (c) does not specify also what paragraph 4 of the office memorandum had stated. Neither does it mention that any amount that could be fixed by that office memorandum would be the benchmark for determining the eligibility of such an applicant. 11. This clause 9 (c) does not specify also what paragraph 4 of the office memorandum had stated. Neither does it mention that any amount that could be fixed by that office memorandum would be the benchmark for determining the eligibility of such an applicant. On the contrary, if one reads clause 9 (c) it appears that so far as the fixation of onus for examining the penurious condition of a dependant family upon the authority has been made on the strength of that office memorandum. Without anything more, the respondents cannot make a submission in vacuum that the concerned Corporation had accepted the amount of the minimum wage as the maximum permissible family income for considering such a case. 12. That apart, Clause 9 has no application to the facts of the present case. This Clause relates to belated request for compassionate appointment. Therefore, following the settled principle of statutory interpretation all the sub-clauses mentioned under the main heading of the clause must be for the purpose of providing necessary clarifications or making provisions for the subject-matter of the main clause which in the present case deals with belated request for compassionate appointment. Here there was no delay in making the application for appointment on compassionate ground. A bereaved family made an application within three months from the death of the sole earning member. Thus, this clause or the sub-clauses thereunder cannot be made applicable to the present case. 13. Mr. Das, the learned Advocate for the petitioner submitted that the family is in great penury. Over and above the financial crisis being faced as a result of the untimely death of the predecessor-in-interest of the petitioners the divorced daughter of the deceased employee is residing with the petitioner no. 1 with an autistic child. 14. While I appreciate the submission of Mr. Das from a humane perspective it cannot be glossed over that this cannot be the sole criteria for directing the respondents to either relax their Rules or to deviate from the “laid down criteria”. Had the criteria been laid down and fixed by the Corporation, the case of the petitioner no. 2 might never have been considered. The Court might at most make a request to the authorities to consider the case of the petitioner. 15. But this is a case where the criteria has not been laid down anywhere. Had the criteria been laid down and fixed by the Corporation, the case of the petitioner no. 2 might never have been considered. The Court might at most make a request to the authorities to consider the case of the petitioner. 15. But this is a case where the criteria has not been laid down anywhere. On the contrary, the respondents have repeatedly referred to the word “laid down criteria” without referring to any document where such criteria has been laid down. The consequence is that the authorities of the Corporation have followed a criteria either without any basis or without that being laid down in the scheme for eligibility criteria. If Clause 9(c) of the scheme had governed the case it would have been mentioned under Clause 5 of the scheme and not been made a part separate Clause which has been provided for deciding the cases of belated request. 16. In such view of it, I consider this to be a fit case for appointment of the petitioner no. 2. It is true that the family pension of the petitioner no. 1 is Rs.18,461/- per month. It is equally true that the petitioner no. 2 may have some income from the private coaching. But there being no fixed criterion for disentitlement to the contrary the respondents cannot decide Rs.2,16,000/- per annum as the benchmark. Such benchmark cannot be orally decided by the members of the committee nor can it be verbally acted upon. When a statutory authority decides the right of an applicant it has to do it by the standard it has been fixed officially and in the absence of any official document such fixation must be held to be without basis and arbitrary. 17. I, therefore, direct the authorities to revisit their opinion in terms of the observations made in this order. The communication dated December 19, 2017 is hereby set aside and quashed. I direct the respondents to take a fresh decision uninfluenced by the previous stand taken by them or the stand communicated to Mr. Mihir Kundu through the letter of the respondent no. 5 on November 14, 2018. Such fresh decision shall be taken within a period of six weeks from the date of communication of the order. Mr. Sanyal in his usual eagerness to save his clients from any future complication feebly prayed for a longer period for such exercise. Mihir Kundu through the letter of the respondent no. 5 on November 14, 2018. Such fresh decision shall be taken within a period of six weeks from the date of communication of the order. Mr. Sanyal in his usual eagerness to save his clients from any future complication feebly prayed for a longer period for such exercise. Considering the fact that the petitioner no. 2 lost his earning father about 15 years ago I trust the authorities would treat the timeframe as mandatory. 18. The writ petition is disposed of. 19. There shall be no order as to costs. 20. Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings.