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