Ashish Kalia ORDER
Ashish Kalia, Member (J)
1. The applicant claimed relief as under:
"1) To call for the records leading to Annexure A3 and may be pleased to set aside the same on the ground that it is illegal, in the interest of justice,
2) To direct the respondents to consider the applicant's claim for appointment under the compassionate grounds, afresh, adverting to Annexure A5 revised scheme as expeditiously as possible, within such time as this Hon'ble Tribunal deems fit and proper in the interest of justice,
3) To pass any such or further orders as the applicant may seek and this Hon'ble Tribunal deems fit to grant."
2. The brief facts of the case are that the applicant is the daughter of Late Unnikrishnan K, who died in harness while working as Telecom Mechanic on 11.1.2012. The mother of the applicant Radhadevi expired on 16.9.2010. The deceased was survived by one daughter, one son and Radhadevi's sister who is unmarried and mentally retarded. Applicant got married on 22.8.2016. On account of marriage she had to take personal loans from private persons to meet the expenses of marriage. Since the family of the deceased was virtually thrown into the plaint of destitution, the applicant applied for employment under the scheme for employment of dependents of Government servants dying while in service. The application of the applicant was considered by the Circle High Power Committee and the same was rejected by order Annexure A2. The applicant submits that the committee considered the application applying the system of weightage point system and found that the applicant is entitled to obtain only 27 points as against the minimum of 55 or above points which is considered for grant of appointment. The respondents while rejecting the application of the applicant had not applied the provisions of the revised scheme which was in force. Therefore, the action of the respondents is arbitrary and illegal. Aggrieved the applicant has approached this Tribunal with the present OA.
3. Notices were issued to the respondents. They have entered appearance through Shri V. Santharam, learned counsel appearing for the respondents. It is contended by respondents that 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 and to relieve the family of the Government servant concerned from financial destitution and help to get over the emergency. As per the rules, provision of appointment under the scheme is limited to 5% of vacancies falling under direct recruitment quota in any Group C or D post and as such while considering a compassionate appointment request, a balanced and objective assessment of the financial condition of the family has to be made taking into account its assets and liabilities, presence of earning member, size of the family, age of the children and all other relevant factors of the case, especially in view of the fact that in number of occasions the Hon'ble apex court has pronounced that granting of appointment on compassionate grounds without assessing the financial position of the family is impermissible. The deceased official was survived by his daughter (applicant) and a son at the time of submission of the application. Terminal benefits amounting to Rs. 6,51,890/- were paid to the family of the deceased official in addition to a monthly family pension of Rs. 7,775/- plus DA. The application of the applicant was placed before the Circle High Power Committee in its meeting held on 29.3.2017. It examined all aspects of the case in accordance with the weightage point system for compassionate grounds appointment in BSNL. In the instant case the net points came to be only 27 and hence the application was rejected. The respondents submit that the contention of the applicant that she is eligible for 20 points as per the new scheme is misleading. Respondents pray for dismissing the OA.
4. Heard Shri Sreekumar G. Chellur, learned counsel appearing for the applicant and Mr. V. Santharam, learned counsel appearing for the respondents. Perused the record.
5. In OA No. 180/166/2018 dated 16th August, 2019 this Tribunal after considering the judgment of the apex court in State of Himachal Pradesh & Anr. v. Shashi Kumar - MANU/SC/0081/2019 : (2019) 3 SCC 653 dismissed the OA holding as under:
"9. Heard Shri P.A. Kumaran and Shri Nirmal V. Nair on behalf of the applicant and Smt. K. Girija, learned Standing counsel for BSNL. Admittedly, the Scheme for compassionate ground appointment is meant to lessen the burden cast upon a bereaved family on account of the death of an Government employee 'in harness'. In view of the 5% limit on DR vacancies set apart for this category, the authorities are required to be diligent while considering all factors relating to the eligibility of an applicant for appointment under the Scheme. The applicant has fallen short of required 55 marks by 5 marks and if she had been awarded more marks on the ground that her son had been a minor, which he was at the time of death of the Government employee, she would have qualified. However, the respondents have pointed out that on the date the applicant chose to file her application her son had attained majority and was 18 years of age. We see no impropriety in the stand taken by the respondents in this regard. The claim of the applicant becomes live only when she has filed the application, on which date her son was not eligible for the additional marks as a minor. The contention of the applicant in this regard is thus not valid.
10. Whether the terminal benefits are to be considered as part of factors that are going into assessment of eligibility under the Scheme is another point disputed by the applicant. According to her, these are rightful dues to which her husband and after his death his legal heirs are eligible. To state that the receipt of the same would lift the bereaved family out of indigence is an unreasonable conjecture made by the respondents, the applicant claims. She assails the Scheme on this aspect. However, we see that the Apex Court has considered this specific issue in considerable detail in State of Himachal Pradesh & Anr. Vs. Shashi Kumar in Civil appeal No. 988 of 2019 (Arising out of SLP(C) No. 7079 of 2016), wherein the policy underlying the Scheme for compassionate ground appointment has been upheld stating as below:
".... the Scheme contemplates that payments which have been received on account of welfare measures provided by the State including family pension are to be taken into account. Plainly, the terms of the Scheme must be implemented."
On the basis of the above, we see that the OA is devoid of merit. It is dismissed. No costs."
6. In the present case the claim of the applicant is that the revised scheme should be followed in her case while considering her application for compassionate appointment. The respondents have denied this fact in the reply statement contending that even though the family gets family pension of Rs. 7,775/- plus DA, the basic pension in the pre-revised scale without the DA factor i.e. Rs. 3,490/- will be taken into account. As per the letter dated 21.4.2016 the pension calculated with uniform fitment benefit @ 30% of basic pay plus effective DA @ 78.2% as on 1.1.2007 is to be taken in to account. Since these guidelines have not come into force the said pension amount has not been calculated. Therefore, the applicant will not get 20 points as claimed by her even if these guidelines are implemented and may not even get the weightage points under the pension factor in the new scheme. The apex court in Shashi Kumar's case (supra) held as under:
"32. The learned Senior Counsel appearing on behalf of the appellants has sought to distinguish the above observations, in the judgment in Canara Bank v. M. Mahesh Kumar - MANU/SC/0634/2015 : (2015) 7 SCC 412 by submitting that it is not the case of the State of Himachal Pradesh that mere receipt of family pension would disable an applicant from submitting an application for compassionate appointment or preclude consideration of the claim. On the contrary, the submission which is urged is that the scheme requires consideration of all relevant sources of income and hence, receipt of family pension would be one of the criteria which would be taken into consideration in determining as to whether the family of the deceased employee is in indigent circumstances. We find merit in this submission for the simple reason that it is in accord with the express terms of the scheme of 18.1.1990 as modified by the State. The scheme contemplates that payments which have been received on account of welfare measures provided by the State including family pension are to be taken into account., Plainly, the terms of the scheme must be implemented."
7. Compassionate appointment is an exception to the general rule and 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. The dependents of a deceased employee are made eligible by virtue of the policy on compassionate appointment. 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. It is the immediacy of the need which furnishes the basis for the respondents to allow the benefit of compassionate appointment. The terms on which such applications would be considered are subject to the policy which is framed by the respondents. In the instant case the policy for compassionate appointment mandated that receipt of benefits received by family on account of welfare measures including family pension and death gratuity was required to be considered while assessing requirement of immediate means of sustenance. Therefore, as per the judgment of the apex court in Shashi Kumar's case (supra) the policy for compassionate appointment should be strictly adhered to by the respondents while considering the claim for compassionate appointment.
8. Taking stock of the above and in view of the judgment of the apex court in Shashi Kumar's case (supra), this Tribunal do not find any merit in the OA. Accordingly, the OA is dismissed. There shall be no order as to costs.
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