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2024 DIGILAW 180 (ALL)

Sudeep Kumar Yadav v. Union of India

2024-01-17

DONADI RAMESH, VIVEK KUMAR BIRLA

body2024
JUDGMENT : 1. Heard Sri Vimal Kumar, learned counsel for the petitioner as well as Sri Shashi Prakash Singh, learned Additional Solicitor General of India assisted by Sri Gopal Verma, learned counsel for the respondents and perused the record. 2. The writ petition has been filed questioning the order dated 23.08.2023 passed by the Central Administrative Tribunal, Allahabad Bench Allahabad, in Original Application No. 330/01292 of 2019 Sandeep Kumar Yadav vs. Union of India and orders dated 20.06.2002, 01.07.2002, 30.09.2003 and 10.09.2019 passed by respondent no. 3 and consequential directions passed by the Central Administrative Tribunal. 3. Facts of the case is that the father of the petitioner who was a permanent vehicle mechanic in 508 Army Base Workshop, Allahabad Fort, Allahabad died in harness on 05.12.1998 leaving behind his wife Leelawati and four daughters and three sons. Subsequently, the mother of the petitioner has moved an application to the Director General, Army Head Quarter, New Delhi for consideration of the appointment on compassionate ground to anyone of the members of the family of the deceased. Pursuant to the said application, the Commandant & M.D. 508, Army Base Workshop, Allahabad Fort Allahabad has requested the mother of the petitioner for sending complete documents to register name of the eldest son Sudeep Kumar Yadav for employment assistance in the office. The petitioner has complete all requisite formalities in compliance of the letter dated 26.02.1999 before third respondent. Subsequently, third respondent also made correspondence directing the petitioner to submit all the relevant documents. Accordingly, the petitioner complied with the letter dated 11.12.1999. 4. That being so, the respondents arbitrarily and illegally without considering financial condition of the family of the deceased refused to accept the request and passed the impugned orders 20.06.2002/01.07.2002. While passing the said orders, the respondents have not disclosed details of merit list of all the candidates considered by the Board during June 2001, September 2001, December 2001 and March 2002. Hence the petitioner was not able to know correct position of the merit list. As against the said order, the mother of the petitioner has preferred appeal/representation on 11.12.2002 and 19.12.2002 requesting for giving employment to her son on compassionate ground. Considering the said request, the respondents again vide order dated 30.09.2003 rejected the request of the petitioner for appointment on compassionate ground saying that the case of the petitioner has already been rejected vide orders dated 20.06.2002/01.07.2002. Considering the said request, the respondents again vide order dated 30.09.2003 rejected the request of the petitioner for appointment on compassionate ground saying that the case of the petitioner has already been rejected vide orders dated 20.06.2002/01.07.2002. 5. Being aggrieved by the aforesaid action of the respondents, the petitioner has moved a civil misc. writ petition no. 40017 of 2004 before this Court and challenged the said rejection orders. The said writ petition was dismissed on the ground of alternative remedy vide order dated 28.09.2018. 6. After that, the petitioner has received one more letter dated 14.11.2018 from third respondent whereby he demanded certain documents for consideration of his appointment on compassionate ground and the petitioner has submitted further documents in support of the request made by third respondent vide letter dated 20.12.2018. The petitioner has further received a letter dated 27.03.2019 whereby he was directed to complete certain formality for sending the matter to the Army Head Quarter and further the petitioner received a letter from third respondent on 10.09.2019 whereby the Board of Officers as per the guidelines/instructions issued by the Government of India has examined the case of the petitioner and found that due to constraints of inadequate vacancies and also due to not make up in relative merit against the ceiling of 5% quota, the petitioner has not been selected. Consequently, left with no option, the petitioner approached the Central Administrative Tribunal, Allahabad Bench Allahabad questioning the orders passed by the respondents rejecting the case of the petitioner for compassionate appointment. 7. After completing the pleadings, the Tribunal has considered the original application filed by the petitioner. Though the case of the petitioner was considered by the respondents five times but no details of the candidates who were selected in those Board meeting has been given and the respondents failed to consider the petitioner’s application and based on financial income of the deceased in prospective manner, the Tribunal also rejected the petitioner’s application for compassionate ground. 8. Refuting the submissions, learned counsel for the respondents has submitted that the petitioner’s case was considered on four times June 2001, September 2001, December 2001 and March 2002, due to constraints of inadequate vacancies, the petitioner could not be appointed and his name was deleted from the names of the aggrieved persons for further consideration. 8. Refuting the submissions, learned counsel for the respondents has submitted that the petitioner’s case was considered on four times June 2001, September 2001, December 2001 and March 2002, due to constraints of inadequate vacancies, the petitioner could not be appointed and his name was deleted from the names of the aggrieved persons for further consideration. Despite the same, the respondents have considered once again the candidature of the petitioner in 2019 but he could not be appointed on the ground of inadequate vacancies. Further he has argued that the matter is very old and the deceased employee had died in 1998 and more than 25 years have elapsed. Hence, at this juncture, the question of consideration of the compassionate appointment would not arise in view of ratio laid down by Hon’ble Apex Court in the various judgments. The said legal position has been extracted by the Tribunal in its order in paragraph nos. 7, 8 and 10 of the said judgment, which are reproduced herein under: “7. Before proceeding to discuss the submissions raised across the bar and analyzing the same in the light of the facts and circumstances of the case, I find it expedient to quote the relevant portion of the judgments relied upon by the applicant: Relevant portion of judgment of Smt. Parden Oraon (supra) “9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the Respondent’s son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the Respondent’s husband is missing since 2002. Two sons of the Respondent who are the dependents of her husband as per the records, are also shown as dependents of the Respondent. It cannot be said that Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 there was any financial crisis created immediately after Respondent’s husband went missing in view of the employment of the Respondent. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, we are convinced that the Respondent’s son cannot be given compassionate appointment at this point of time. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, we are convinced that the Respondent’s son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondent’s husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondent’s son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.” Relevant portion of judgment of Smt. Phulmati Devi (supra) “25. In view of this court, the aforesaid argument cannot be accepted. The revised consolidated instruction on the scheme of compassionate appointment circulated by G.I. Department of Personnel and Training OM dated 09.10.1998 is relevant for this purpose. In Rules-7 and 8, it is mentioned that:- 7. Determination/Availability of Vacancies: (a) Appointment on compassionate grounds should be made only on regular basis and that too only if regular vacancies meant for that purpose are available. (b) Compassionate appointments can be made upto a maximum of 5% of vacancies falling under direct recruitment quota in any Group ‘C’ or ‘D’ post. The appointing authority may hold back upto 5% of vacancies in the aforesaid categories to be filled by direct recruitment through Staff Selection Commission or otherwise so as to fill such vacancies by appointment on compassionate grounds. A person selected for appointment on compassionate grounds should be adjusted in the recruitment roster against the appropriate category viz. SC/ST/ OBC/General depending upon the category to which he belongs. For example, if he belongs to SC category he will be adjusted against the SC reservation point, if he will be adjusted against ST/OBC point and if he belongs to General category he will be adjusted against the vacancy point meant for General category. (c) While the ceiling of 5%, for making compassionate appointment against regular vacancies should not be circumvented by making appointment of dependent family member of Government servant on casual/daily wage/ad-hoc/contract basis against regular vacancies, there is no bar to considering him for such appointment if he is eligible as per the normal rules/orders governing such appointments. (c) While the ceiling of 5%, for making compassionate appointment against regular vacancies should not be circumvented by making appointment of dependent family member of Government servant on casual/daily wage/ad-hoc/contract basis against regular vacancies, there is no bar to considering him for such appointment if he is eligible as per the normal rules/orders governing such appointments. (d) The ceiling of 5% of direct recruitment vacancies for making compassionate appointment should not be exceeded by utilising any other vacancy e.g., sports quota vacancy. (e) Employment under the scheme is not confined to the Ministry/ Department/Office in which deceased/medically retired Government servant had been working. Such an appointment can be given anywhere under the Government of India depending upon availability of a suitable vacancy meant for the purpose of compassionate appointment. (f) If sufficient vacancies are not available in any particular ‘office to accommodate the persons in the ‘Waiting list for compassionate appointment, it is open to the administrative Ministry/Department/ Office to take up the matter with other Ministries/Departments/Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list. 8. Belated requests for Compassionate Appointment (a) Ministries/Departments can consider requests for compassionate appointment even where the death or retirement on medical grounds of a Government servant took. place long back, say five years or so. While considering such belated requests it should, however, be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the Government servant in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. Therefore, examination of such cases would call for a great deal of circumspection. The decision to make appointment on compassionate grounds in such cases may, therefore, be taken only at the level of the Secretary of the Department/Ministry concerned. (b) Whether a request for compassionate appointment is belated or not may be decided with reference to the date of death or retirement on medical ground of a Government servant and not the age of the applicant at the time of consideration. 26. (b) Whether a request for compassionate appointment is belated or not may be decided with reference to the date of death or retirement on medical ground of a Government servant and not the age of the applicant at the time of consideration. 26. For the same purpose, OM No. 14014/19/2002 dated 05.05.2003 is also relevant, which says: “Copy of O.M. No. 14014/19/2002-Estt(D) dated 5.5.2003 from Ministry of Personnel, Public Grievances & Pensions Department of Personnel &Training Subject: Time-limit for making compassionate appointment. 1. The undersigned is directed to refer to Department of Personnel & Training OM No. 14014/6/94-Estt(D) dated October 9, 1998 and OM No. 14014/23/99-Estt(D) dated December 3, 1999 on the above subject and to say that the question of prescribing a time limit for making appointment on compassionate grounds has been examined in the light of representations received, stating that the one year limit prescribed for grant of compassionate appointment is often resulting in depriving genuine cases seeking compassionate appointments, on account of regular vacancies not being available, within the prescribed period of one year and within the prescribed ceiling of 5% of direct recruitment quota. 2. It has therefore been decided that if compassionate appointments to genuine and deserving cases, as per the guidelines contained in the above OMs is not possible in the first year due to non-availability of regular vacancy, the prescribed committee may review such cases to evaluate the financial conditions of the family to arrive at a decision as to whether a particular case warrants extension by one more year, for consideration for compassionate appointment by the Committee, subject to availability of a clear vacancy within the prescribed 5% quota. If on scrutiny by the Committee, a case is considered to be deserving, the name of such a person can be continued for consideration for one more year. 3. The maximum time a person’s name can be kept under consideration for offering Compassionate appointment will be three years, subject to the condition that the prescribed Committee has reviewed and certified the penurious condition of the applicant at the end of the first and the second year. After three years, if compassionate appointment is not possible to be offered to the applicant, his case will be finally closed, and will not be considered again. 4. The instructions contained in the above-mentioned OMs stand modified to the extent mentioned above. 5. After three years, if compassionate appointment is not possible to be offered to the applicant, his case will be finally closed, and will not be considered again. 4. The instructions contained in the above-mentioned OMs stand modified to the extent mentioned above. 5. The above decision may be brought to the notice of all concerned for information, guidance and necessary action.” 27. Therefore, looking to the aforesaid provision and the rules, it appears that the claim of the applicant was required to be considered for the vacancies of three years. Nowhere it is provided that the vacancy should arise only after the death of the deceased employee. The vacancies may be carried forward for three years. If the vacancies are available (5% for compassionate appointment) then the selection for the aforesaid vacancies should be made in chronological order. At the time of consideration of the application, the vacancies available should be filled. It is not relevant that the vacancies are related to which year. The oldest vacancies should be filled on a priority basis. Therefore, the case of the applicant has rightly been considered for the vacancies related to three years and was available at the time of consideration of the application. 28. In the aforesaid situation, in view of this court the OA is liable to be dismissed. The respondents rightly rejected the claim of the applicant. Hence, OA is dismissed.” 8. As per dictums of Hon’ble Apex Court, it is settled position of law that compassionate appointment is granted to meet the sudden crisis on account of death of breadwinner while in service. While considering the claim for compassionate appointment, financial condition of family of deceased employee must be taken into consideration. The object to grant compassionate appointment is to provide immediate help to the dependents of deceased employee, so that they may not die in starvation. 10. Hon’ble Apex Court in the case of State of West Bengal vs. Debabrata Tiwari and Others in Civil Appeal No. 8842-8855 of 2022 decided on 3.3.2023 in Paras 7.1 and 7.2 has held as under: “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. 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 vs. 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 vs. 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 vs. 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. (iii) In Haryana State Electricity Board vs. 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) This Court in State of Haryana vs. 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 vs. 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 19 being not to provide for endless compassion, vide I.G. (Karmik) vs. Prahalad Mani Tripathi, (2007) 6 SCC 162 . In the same vein is the decision of this Court in Mumtaz Yunus Mulani vs. 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. In the same vein is the decision of this Court in Mumtaz Yunus Mulani vs. 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 vs. 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 6 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 Articles 14 and 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. 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 Article 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 7 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. (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 22 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.” 9. While considering the above observations of the Hon’ble Apex Court and also the fact that the deceased died in 1998 and 25 years have elapsed, the Hon’ble Apex Court in the case of Sushma Gosain vs. Union of India, (1989) 4 SCC 468 and Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 has categorically held that with regard to the principle of compassionate grounds, appointment is given only for immediate unexpected hardship which is faced by the family by the reason of the death of sole bread earner. The 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. Further, it has been observed that 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. 10. As observed by Hon’ble Apex Court in the instant case, more than 25 years have elapsed. At this juncture, consideration of the petitioner’s case under compassionate ground would not be just and reasonable. Accordingly, the Tribunal rejected claim of the petitioner in the right perspective. It is also not in dispute that the Authority has considered the case of the petitioner. In fact, the petitioner’s case has been considered by the respondent no. 3 nearly five times and he could not be able to provide employment for want of inadequate vacancy. 11. Accordingly, the Tribunal rejected claim of the petitioner in the right perspective. It is also not in dispute that the Authority has considered the case of the petitioner. In fact, the petitioner’s case has been considered by the respondent no. 3 nearly five times and he could not be able to provide employment for want of inadequate vacancy. 11. In view of the above, we are not inclined to interfere with the order of the Tribunal. Accordingly, the writ petition is dismissed.