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2024 DIGILAW 1620 (KER)

A. G. Ajayakumar, S/o. Late C. Gopalan v. Chief Post Master General, Department Of Posts India, Kerala Circle

2024-12-09

AMIT RAWAL, K.V.JAYAKUMAR

body2024
JUDGMENT : (K.V. Jayakumar, J.) This Original Petition is directed against the order of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.22/2018 dated 11.07.2018. The petitioner herein is the applicant before the learned Tribunal. The Tribunal, by the impugned order, has rejected the claims of compassionate appointment of the applicant. 2. The facts necessary for disposal of this Original Petition in brief are as follows: The petitioner, Sri.A.G.Ajayakumar, is the son of Sri. C. Gopalan who died on 03.03.2007 while working as Postman in Pulpally, Waynad. After his father’s death, petitioner applied for employment assistance under the Compassionate Employment Scheme on 03.05.2007. The 1st respondent/Chief Post Master General had not considered the request of the petitioner’s employment assistance in the Compassionate Employment Scheme. 3. The petitioner is the younger son of the deceased Government servant. Other legal heirs of the deceased Gopalan are the petitioner’s mother and elder sister. They relinquished the claim for compassionate employment and none of the other dependents of the deceased Government servant has availed the benefit of employment under the Scheme. 4. The petitioner is unemployed and was fully dependent on the deceased for his livelihood. Petitioner’s mother is an Asthma patient, apart from other old age ailments. Even though the petitioner and his mother jointly own a plot and a small house, no income is derived from this. The petitioner and his mother were struggling hard for their livelihood. Now petitioner’s mother is no more. 5. The representation of the petitioner dated 26.02.2009 was forwarded to the 2nd respondent by 1st respondent and it was rejected by the 1st respondent on 12.10.2009. 6. The petitioner was not given appointment under the pretext that there are limited vacancies in the department and petitioner’s name was not recommended by the Circle Relaxation Committee. 7. The petitioner has also made a representation to the Chief Post Master General, Trivandrum on 02.07.2014 through the 2nd respondent to consider his grievance. It was also turned down by the department. Thereafter the petitioner preferred O.A.No.890/2015 before the Tribunal challenging the orders of the respondents. The Tribunal, as per order dated 04.10.2016, directed the respondents to reconsider the request of the petitioner and pass a speaking order. 8. However, the 2nd respondent has passed an order reiterating the same grounds. Thereafter, the petitioner preferred O.A.No.22/2018 before the Central Administrative Tribunal. The Tribunal dismissed O.A.No.22/2018 as per order dated 11.07.2018. The Tribunal, as per order dated 04.10.2016, directed the respondents to reconsider the request of the petitioner and pass a speaking order. 8. However, the 2nd respondent has passed an order reiterating the same grounds. Thereafter, the petitioner preferred O.A.No.22/2018 before the Central Administrative Tribunal. The Tribunal dismissed O.A.No.22/2018 as per order dated 11.07.2018. Ext.P5 is the true copy of the said order. Impugning the said order, the applicant approached this Court under Article 227 of the Constitution. 9. Heard Adv.Celine Joseph, learned counsel appearing for the petitioner and Adv.T.C.Krishna, Deputy Solicitor General of India-In- Charge for respondents. 10. The learned counsel for the petitioner submitted that the impugned order of the Central Administrative Tribunal is illegal and unjustifiable. The Tribunal ought to have found that the petitioner and his mother had no fixed income or job. He cannot survive by the meagre income received from the agricultural activities. The entire family is in financial difficulties on account of the sudden stoppage of the main source of income of his father Sri. C. Gopalan. 11. It was submitted that, Compassionate Employment Scheme was introduced to mitigate the hardship caused to the family of the deceased on account of unexpected death, while in service. 12. From among the rival contentions before us, the only point arises for our consideration is whether the petitioner is entitled to get employment under the Compassionate Employment Scheme. 13. The Central Administrative Tribunal dismissed the Original Application holding that, no indigency can be ascribed to a man living with his wife and children and the family of the petitioner owns 1.60 acres of land with a house therein. 14. Before further discussion, it may be useful to refer the various decisions of the Honourable Apex Court on this point. The Apex Court in the decision in State of West Bengal v. Debabrata Tiwari & Others [2023 KHC 6219] opined that, compassionate appointment is not a vested right which can be exercised at any time in future. In this case, the Apex Court had occasion to enumerate the principles of compassionate appointment. Paragraph 7 of the judgment of Debabrata Tiwari’s case (supra) is extracted hereunder: “7. Policy of Compassionate Appointment: The Rationale: The majesty of death is that it is a great leveller for, it makes no distinction between the young and the old or the rich and the poor. Paragraph 7 of the judgment of Debabrata Tiwari’s case (supra) is extracted hereunder: “7. Policy of Compassionate Appointment: The Rationale: The majesty of death is that it is a great leveller for, it makes no distinction between the young and the old or the rich and the poor. Death being as a consequence of birth at some point of time is inevitable for every being. Thus, while death is certain, its timing is uncertain. Further, a deceased employee does not always leave behind valuable assets; he may at times leave behind poverty to be faced by the immediate members of his family. Therefore, what should be done to ensure that death of an individual does not mean economic death for his family? The State's obligation in this regard, confined to its employees who die in harness, has given rise to schemes and rules providing for compassionate appointment of an eligible member of his family as an instance of providing immediate succour to such a family. Support for such a provision has been derived from the provisions of Part IV of the Constitution of India, i.e., Art.39 of the Directive Principles of State Policy. 7.1. It may be apposite to refer to the following decisions of this Court, on the rationale behind a policy or scheme for compassionate appointment and the considerations that ought to guide determination of claims for compassionate appointment. i. In Sushma Gosain v. Union of India, 1989 (4) SCC 468 , this Court observed that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. That the purpose of providing appointment on compassionate grounds is to mitigate the hardship caused due to the death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. ii. In Umesh Kumar Nagpal v. State of Haryana, 1994 (4) SCC 138 , this Court observed that the object of granting compassionate employment is to enable the family of a deceased government employee to tide over the sudden crisis by providing gainful employment to one of the dependants of the deceased who is eligible for such employment. ii. In Umesh Kumar Nagpal v. State of Haryana, 1994 (4) SCC 138 , this Court observed that the object of granting compassionate employment is to enable the family of a deceased government employee to tide over the sudden crisis by providing gainful employment to one of the dependants of the deceased who is eligible for such employment. That 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, provided a scheme or rules provide for the same. This Court further clarified in the said case that compassionate appointment is not a vested right which can be exercised at any time after the death of a government servant. That 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, compassionate employment cannot be claimed and offered after lapse of considerable amount of time and after the crisis is overcome. iii. In Haryana State Electricity Board v. Hakim Singh, 1997 (8) SCC 85 , ('Hakim Singh') this Court placed much emphasis on the need for immediacy in the manner in which claims for compassionate appointment are made by the dependants and decided by the concerned authority. This Court cautioned that it should not be forgotten that the object of compassionate appointment is to give succour to the family to tide over the sudden financial crisis that has befallen the dependants on account of the untimely demise of its sole earning member. Therefore, this Court held that it would not be justified in directing appointment for the claimants therein on compassionate grounds, fourteen years after the death of the government employee. That such a direction would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession. iv. Therefore, this Court held that it would not be justified in directing appointment for the claimants therein on compassionate grounds, fourteen years after the death of the government employee. That such a direction would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession. iv. This Court in State of Haryana v. Ankur Gupta, AIR 2003 SC 3797 held that in order for a claim for compassionate appointment to be considered reasonable and permissible, it must be shown that a sudden crisis occurred in the family of the deceased as a result of death of an employee who had served the State and died while in service. It was further observed that appointment on compassionate grounds cannot be claimed as a matter of right and cannot be made available to all types of posts irrespective of the nature of service rendered by the deceased employee. v. There is a consistent line of authority of this Court on the principle that appointment on compassionate grounds is given only for meeting the immediate unexpected hardship which is faced by the family by reason of the death of the bread earner vide Jagdish Prasad v. State of Bihar, 1996 (1) SCC 301 . When an appointment is made on compassionate grounds, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion, vide I.G. (Karmik) v. Prahalad Mani Tripathi, 2007 (6) SCC 162 . In the same vein is the decision of this Court in Mumtaz Yunus Mulani v. State of Maharashtra, 2008 (11) SCC 384 , wherein it was declared that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. vi. In State of Jammu and Kashmir v. Sajad Ahmed Mir, AIR 2006 SC 2743 , the facts before this Court were that the government employee (father of the applicant therein) 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. 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. This Court remarked that the said facts were relevant and material as they would demonstrate that the family survived in spite of death of the employee. Therefore, this Court held that granting compassionate appointment after a lapse of a considerable amount of time after the death of the government employee, would not be in furtherance of the object of a scheme for compassionate appointment. vii. In Shashi Kumar, this Court speaking through Dr. D.Y. Chandrachud, J. (as His Lordship then was) observed that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Art.14 and Art.16 of the Constitution. That the basis of the policy is that it recognizes that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. That it is the immediacy of the need which furnishes the basis for the State to allow the benefit of compassionate appointment. The pertinent observations of this Court have been extracted as under: '41. Insofar as the individual facts pertaining to the Respondent are concerned, it has emerged from the record that the Writ Petition before the High Court was instituted on 11 May 2015. The application for compassionate appointment was submitted on 8 May 2007. On 15 January 2008 the Additional Secretary had required that the amount realized by way of pension be included in the income statement of the family. The Respondent waited thereafter for a period in excess of seven years to move a petition Under Art.226 of the Constitution. In Umesh Kumar Nagpal (supra), this Court has emphasized that the basis of a scheme of compassionate appointment lies in the need of providing immediate assistance to the family of the deceased employee. This sense of immediacy is evidently lost by the delay on the part of the dependant in seeking compassionate appointment.' 7.2. In Umesh Kumar Nagpal (supra), this Court has emphasized that the basis of a scheme of compassionate appointment lies in the need of providing immediate assistance to the family of the deceased employee. This sense of immediacy is evidently lost by the delay on the part of the dependant in seeking compassionate appointment.' 7.2. On consideration of the aforesaid decisions of this Court, the following principles emerge: i. That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions and must be resorted to only in order to achieve the stated objectives, i.e., to enable the family of the deceased to get over the sudden financial crisis. ii. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis. iii. Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate employment cannot be claimed or offered after a lapse of time and after the crisis is over. iv. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years. v. 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 if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source. 7.3. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis due to the death of the bread - earner which has left the family in penury and without any means of livelihood. 7.3. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis due to the death of the bread - earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be in a position to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Having regard to such an object, it would be of no avail to grant compassionate appointment to the dependants of the deceased employee, after the crisis which arose on account of death of a bread - winner, has been overcome. Thus, there is also a compelling need to act with a sense of immediacy in matters concerning compassionate appointment because on failure to do so, the object of the scheme of compassionate would be frustrated. 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 thus lose its significance 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 for consideration. 7.4. As noted above, the sine qua non for entertaining a claim for compassionate appointment is that the family of the deceased employee would be unable to make two ends meet without one of the dependants of the deceased employee being employed on compassionate grounds. The financial condition of the family of the deceased, at the time of the death of the deceased, is the primary consideration that ought to guide the authorities' decision in the matter. 7.5. Considering the second question referred to above, in the first instance, regarding whether applications for compassionate appointment could be considered after a delay of several years, we are of the view that, in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Further, the financial circumstances of the family of the deceased, may have changed, for the better, since the time of the death of the government employee. In such circumstances, Courts or other relevant authorities are to be guided by the fact that for such prolonged period of delay, the family of the deceased was able to sustain themselves, most probably by availing gainful employment from some other source. Granting compassionate appointment in such a case, as noted by this Court in Hakim Singh would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession which is contrary to the Constitution. Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee.” 15. In Phoolwati v. Union of India & Others [1991 KHC 843], the Apex Court held that in all claims for appointment on compassionate claims, there should not be any delay in appointment. 16. In Haryana State Electricity Board v. Naresh Tanwar and Another [1996 KHC 1610] the Apex Court expressed the view that the purpose of compassionate appointment is intended to meet the minimum financial problem being suffered by the members of the family of the deceased employee. It is an exception to the general rule of open recruitment. 17. In State of U.P. v. Paras Nath, [ (1998) 2 SCC 412 ] it was observed taht the purpose of providing employment to a dependant of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death, while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is made after a long period of time. 18. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is made after a long period of time. 18. The ratio decidendi which can be culled out from the above referred decisions can be summarised as follows: (i) All claims for the appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate grounds is to mitigate the hardship caused due to the death of the bread earner in the family. (ii) The object of granting compassionate employment is to enable the family of the deceased Government employee to tied over the sudden crisis by providing gainful employment to one of the dependants of the deceased who is eligible for such employment. That 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 (iii) The object of compassionate appointment is to give succour to the family to tide over the sudden financial crisis that has befallen the dependants on account of the untimely demise of its sole earning member (iv) The appointment on compassionate grounds cannot be claimed as a matter of right and cannot be made available to all types of posts irrespective of the nature of service rendered by the deceased employee (v) When an appointment is made on compassionate grounds, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion. The appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. (vi) The compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Art.14 and Art.16 of the Constitution. (vii) The basis of a scheme of compassionate appointment lies in the need of providing immediate assistance to the family of the deceased employee. This sense of immediacy is evidently lost by the delay on the part of the dependant in seeking compassionate appointment. (viii) The sine qua non for entertaining a claim for compassionate appointment is that the family of the deceased employee would be unable to make two ends meet without one of the dependants of the deceased employee being employed on compassionate grounds. The financial condition of the family of the deceased, at the time of the death of the deceased, is the primary consideration that ought to guide the authorities' decision in the matter. 19. Now coming back to the facts of the instant case, wherein, it could be seen that the petitioner and his family owns 1.60 acres of land and a house therein. He is aged 41 years and living with his wife and children. The department has considered the financial condition of the family of the deceased at the time of the death of the deceased, the marital status, the immovable properties owned by the applicant and other relevant factors and arrived at a conclusion. The Central Administrative Tribunal, after taking into consideration of the relevant facts and materials, has passed the impugned order dismissing the claim of the applicant. We do not find any illegality or perversity in the findings of the Central Administrative Tribunal which warrants interference from this Court. The OP(CAT) No.87/2019 fails and is dismissed accordingly.