Compassionate Appointment; Shibin Xavier Vs. Union of India [Kerala High Court, 29-03-2016]

Compassionate Appointment – two unmarried daughters and a minor son who were left behind by the deceased – petitioner son was not eligible to seek compassionate appointment during his minority – therefore, he waited till he attained the minimum age required, for submitting a proper application – on the date of the petitioner’s application, one of the sister’s had got married and that the petitioner had ceased to be a minor – whether his application should be considered taking into account the circumstances of the family as on the date of consideration of the application – held, the dependency of the family member has to be considered with reference to the date of death of the deceased.

# Compassionate Appointment


IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.SURENDRA MOHAN & P.V.ASHA, JJ.

O.P.(CAT) No.56 of 2016

Dated this the 28th day of March, 2016

AGAINST THE ORDER/JUDGMENT IN OA 963/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 07-07-2015

PETITIONER(S)

SHIBIN XAVIER

BY ADVS.SRI.T.C.GOVINDA SWAMY SMT.KALA T.GOPI SMT.T.N.SREEKALA SMT.S.KARTHIKA (K/465/2015)

RESPONDENT(S)

1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF DEFENCE, NEW DELHI-110 001

2. THE CHIEF ENGINEER (NW) MILITARY ENGINEERING SERVICES NAVAL BASE (PO), COCHIN-682 004

R1,R2 BY ADV. SRI.K.SHRI HARI RAO, CGC R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL

J U D G M E N T

Surendra Mohan, J.

The petitioner herein, the applicant in O.A.No.963 of 2013 challenges the dismissal of his application by the Central Administrative Tribunal, Ernakulam Bench as per exhibit P1 order dated 07.07.2015. The petitioner is the son of an employee of the Military Engineering Service at Kochi. The father of the petitioner died in a motor accident on 07.08.2005. As on the date of his death, the father of the petitioner had a total service of more than 22 years. His mother had predeceased his father on 07.11.2004. At the time of his father’s demise, the petitioner was only aged 14 years. His eldest sister at that time was aged 19 years. He had another sister who was aged about 18 years.

2. The petitioner had submitted an application for compassionate appointment. However, by annexure A1 and A2 orders, his application has been rejected. The petitioner had approached the Central Administrative Tribunal challenging the said orders. According to the petitioner, he had submitted the application after attaining the age of 18 years and becoming a major. It was contended that, his family was in a very bad financial condition. One of his sisters had got married after the death of their father. The other sister of his was being paid family pension, which was stopped upon her attaining the age of 25 years. The petitioner is being paid the family pension at present but, that also would be discontinued shortly, it is contended, leaving him without any income even for his sustenance. It was in the above circumstances that, he had submitted an application for compassionate appointment. He had moved the CAT earlier by filing O.A. No.859 of 2011 challenging the rejection of his application. The said original Application was allowed and his application was directed to be reconsidered. Annexures A1 and A2 have been issued in implementation of the direction contained in the order of the CAT, which is annexure A3. Annexures A1 to A3 form part of exhibit P2.

3. The contention of the petitioner was opposed by the respondents. A reply statement as well as an additional reply statement were filed. It was contended that, there were a number of applicants seeking compassionate appointments. Their claims had been considered in accordance with the scheme for compassionate appointment that was in force. Points were awarded to each of the applicants on the basis of the criteria fixed under the scheme for compassionate appointment. The petitioner had not been appointed for the only reason that there were more meritorious candidates. It was contended that, the case of the petitioner had been considered properly and in accordance with law. Therefore, there were no grounds to interfere with the same.

4. The CAT considered the respective contentions of the parties, found that the application of the petitioner had been considered and that there was no allegation that a person with a lower ranking had been given appointment and that it was not possible for the Tribunal to independently enquire into the circumstances of each applicant, make an assessment of its own and to substitute the same for the assessment of the competent authority. In the absence of any allegation of mala fides or bias, the Tribunal declined interference with the impugned orders. The aggrieved petitioner challenges exhibit P1 order.

5. According to Sri.T.C.Govinda Swamy who appears for the petitioner, the application of the petitioner has been considered on the basis of the situation of the family as on the date of consideration of the application. Thus, the number of dependents of the deceased has been taken to be two, for the reason that, the eldest sister had got married. According to the learned Counsel for the petitioner, the number of dependents of the deceased has to be considered as on the date of death of the employee. It is further contended that, as on the date of death of the petitioner’s father, he was only a minor, aged 14 years. Therefore, on the ground of minority also, points ought to have been awarded to the petitioner. Had points been awarded on the basis of the above circumstances, it is contended that, the ranking of the petitioner would have been much higher.

6. Advocate Shri Hari Rao, who appears for the respondents opposes the contentions of the counsel for the petitioner. According to the learned Central Government Counsel, the application of the petitioner has been considered in accordance with the Scheme for Compassionate Appointment. As per various clarifications issued by the Government of India, each application has to be considered taking into account the circumstances on the date of consideration. Therefore, the petitioner’s application was also considered in the same manner. As on the date of consideration of the application, the petitioner was a major and one of his sisters had got married and ceased to be a dependent on the deceased. In view of the above, no points were awarded to the petitioner on both the above counts. The same was correct and in accordance with the scheme that was applicable. The learned Central Government Counsel places reliance on the decision in

# State Bank of India v. Rajkumar, 2010(11) SCC 661

to contend that, an application has to be considered in accordance with the circumstances prevailing as on the date of such consideration. Reliance is placed on the decision in

# MGB Gramin Bank v. Chakrawarti Singh, All India Service Law Journal Volume XI 2013 (3) 328

to contend that the eligibility as well as the financial conditions of the family of the deceased has to be considered in accordance with the scheme.

7. Heard. The facts are not in dispute. It is clear from the dictum of the Apex Court in State Bank of India v. Rajkumar (Supra) that, no person has a right to claim compassionate appointment and that, such an appointment is granted taking into consideration the circumstances in accordance with the scheme that is applicable. Paragraphs 12 and 13 of the judgment referred to above, relevant in the above context are reproduced hereunder.

12. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, up to the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable.

13. Further, where the earlier scheme is abolished and the new scheme which replaces it specifically provides that all pending applications will be considered only in terms of the new scheme, then the new scheme alone will apply. As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts.

8. The above dictum has been followed and reiterated in the decision in MGB Gramin Bank v. Chakrawarti Singh (Supra). Paragraphs 12 and 13 of the said judgment reads as under:-

12. A scheme containing an in pari materia clause, as is involved in this case was considered by this Court in

# State Bank of India & Anr. v. Raj Kumar, (2010) 11 SCC 661

Clause 14 of the said Scheme is verbatim to Clause 14 of the scheme involved herein, which reads as under:

“14. Date of effect of the scheme and disposal of pending applications:

The Scheme will come into force with effect from the date it is approved by the Board of Directors. Applications pending under the Compassionate Appointment Scheme as on the date on which this new Scheme is approved by the Board will be dealt with in accordance with Scheme for payment of ex-gratia lump sum amount provided they fulfill all the terms and conditions of this scheme.”

13. The Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment on compassionate ground may not be claimed as a matter of right nor an applicant becomes entitled automatically for appointment, rather it depends on various other circumstances i.e. eligibility and financial conditions of the family, etc., the application has to be considered in accordance with the scheme. In case the Scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the cause of action had arisen i.e. Death of the incumbent on the post. In State Bank of India &Anr. (supra), this Court held that in such a situation, the case under the new Scheme has to be considered.

It is clear from the above that every application for compassionate appointment has to be considered in accordance with the scheme that is applicable. In the present case, Sri.N.J.Hilari, the deceased employee as on the date of his death, 07.08.2005 had left surviving two unmarried daughters and a minor son. The scheme for compassionate appointment that was brought into force by OM dated 16.1.2013 states in Clause 1 the object of the Scheme, which reads as under:

1.OBJECT

The object of the Scheme is to grant appointment on compassionate grounds to a dependent family member of a Government servant dying in harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood, to relieve the family of the Government servant concerned from financial destitution and to help it get over the emergency.

It is clear from the above that, the object of compassionate appointment is to relieve the family concerned from financial destitution and to help it to tide over the financial emergency. The emergency in the present case was the financial destitution of the two unmarried daughters and a minor son who were left behind by the deceased on 07.08.2005, when he died. Therefore, what ought to have been considered, applying the scheme for compassionate appointment was whether the said family qualified in comparison with the other claimants for being conferred with the benefit of compassionate appointment as sought for by the petitioner. It is not in dispute that, as on the date of the petitioner’s application, one of the sister’s had got married and that the petitioner had ceased to be a minor. He was not eligible to seek compassionate appointment during his minority. Therefore, he had to wait till he attained the minimum age required, for submitting a proper application. In the meantime one of his sisters had got married. However the question arises, whether his application should be considered taking into account the circumstances of the family as on the date of consideration of the application.

9. A perusal of the scheme does not offer any indication in this regard for the reason that, there is no specific provision stipulating the point of time with reference to which the family circumstances are to be taken into account. However, the definition of the Dependent Family Member is relevant in the above context. Clause 2 of the 2013 Scheme that specifies the persons to whom the scheme is applicable, defines “dependent family member” by incorporating a Note which reads as follows:-

NOTE I.– “Dependent Family Member” means:

(a) spouse; or

(b) son (including adopted son); or

(c) daughter (including adopted daughter); or

(d) brother or sister in the case of unmarried Government servant or

(e) member of the Armed Forces referred to in (A) or (B) of this para,

— who was wholly dependent on the Government servant/member of the Armed Forces at the time of his death in harness or retirement on medical grounds, as the case may be.

As per the above definition, spouse, son, daughter, etc. wholly dependent on the Government Servant/Member of the Armed Forces at the time of his death in harness would become entitled. The above definition makes it clear that the dependency of the family member has to be considered with reference to the date of death of the deceased. It is to ameliorate the financial conditions of the said dependent that, the compassionate appointment is to be made. Therefore, the comparative merit of the claimants under the Scheme for Compassionate appointment also would have to be evaluated on the basis of the number of dependents as on the date of the employee’s death. In the present case, as on the date of death of the petitioner’s father, there were three dependents namely, two unmarried daughters and a minor son. It was for the said state of affairs in the family that, points ought to have been given.

10. We note that in the present case, the petitioner’s application has been considered treating the number of dependents of the deceased as only two, the petitioner who is a major and one sister who is unmarried. In the process, the points to which he was entitled to by virtue of his minority and the marks to which the family was entitled for the reason that there were two unmarried daughters were denied. It is held that, the denial of the said marks to the petitioner was not proper, in the light of the above discussion. Annexures A1 and A2 having been issued on the basis of the above erroneous procedure are unsustainable. For the foregoing reasons, this Original Petition is allowed as follows:-

1. Exhibit P1 order of the CAT dated 07.07.2015 in O.A.No.963 of 2013 is set aside.

2. O.A.No.963 of 2013 is allowed. Annexure A1 and A2 orders are set aside.

3. The competent authority is directed to consider the application of the petitioner afresh, in accordance with the findings and observations contained hereinabove.

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