Rajesh Kumar V. Union of India & others

CWP/1952/2017

AI Insights

The case revolves around Rajesh Kumar, who sought a compassionate appointment in place of his deceased father's position, 23 years after his father's death in harness. The father, Amar Chand, had died in 1992, and the family had not pursued a compassionate appointment until Rajesh, upon turning 18, applied in 2005. The initial application was rejected due to policy constraints that required applications to be made within three years of the employee's death. Subsequent applications were also rejected based on the non-availability of vacancies and the scoring system used during the selection process. The Tribunal and the High Court both found that the delay in application and the lack of immediate financial distress at the time of the father's death were critical factors in denying the appointment.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 800640 (HC-HIMACHAL_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 11-03-2020
• Assessment Year: misc
• Other Referred Cases: Umesh Kumar Nagpal vs. State of Haryana & others, Jagdish Prasad vs. State of Bihar & another, MGB Gramin Bank vs. Chakrawarti Singh
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: LOKENDER THAKUR
• Assessee Lawyers: SATYEN VAIDYA; VIVEK SHARMA
• Keywords: Compassionate appointment; Financial hardship; Government service; Employment rights

Judgement Text

" 1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1952 of 2017 Reserved on : December 19 , 2019. Date of Decision : March 11 , 2020 Rajesh Kumar ….Petitioner. Versus Union of India & others ...Respondents Coram: The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. The Hon’ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Satyen Vaidya, Senior Advocate, with Mr. Vivek Sharma, Advocate, for the petitioner. For the respondents : Mr. Lokender Paul Thakur, Senior Panel Counsel, for respondents No. 1 to 4. None for respondents No. 5 and 6. Per: Anoop Chitkara, Judge After twenty-two years of the death of his father in harness, the son, who on such dreadful day of Feb 10, 1992, was hardly six years of age, filed an Original Application before the Central Administrative Tribunal, seeking quashing of letter dated Mar 27, 2015, whereby the respondents refused to appoint him on compassionate grounds, and now the petitioner seeks directions to the respondents to appoint him on compassionate grounds in place of the rights which had accrued to the family in the year 1992. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2. The gist of the facts apposite to adjudicate the present petition traces its history to Feb 10, 1992, when Sh. Amar Chand, who was working as Senior Accountant in the Office of Accountant General, Himachal Pradesh, Shimla, the 3rd respondent herein, expired in harness. 3. Sh. Amar Chand left behind his wife, Smt. Shakuntla Devi, son (petitioner herein), who at that time was six years of age and two daughters who were even younger to him. Needless to say that after the loss of the sole earning member, the family of the deceased employee must have undergone a traumatic situation, including acute financial hardships. Moreover, the wife of Amar Chand was illiterate and a home-maker with no independent source of income. Although the 3rd respondent did make timely payment of all the dues and death-related benefits to the widow of its employee, still at that point in time, such amount was hardly sufficient to take care of the needs of the family. 4. Under the belief that she being illiterate, even if any job which could have been offered to the illiterate widow, would be that of a Class-IV post, whereas in contrast, her husband was working as a Senior Accountant and may be due to self-esteem or family pressure, Smt. Shakuntla Devi, the widow of the deceased 3 employee, sent a letter dated April 18, 1992 (Annexure P-1) to the Senior Accountant General, A.G. Office Shimla, wherein she asserted her legal rights for entitlement on compensatory appointment. However, the lady must have taken pains to explain that she needs to take care of her mother-in-law, which as per her, was her moral duty and was also to take care of her small children, which she also accepted as a moral duty as well as her liability. She further explained to the employer that she is unable to join service due to her above mentioned personal difficulties. She expressed her desire that she wanted to adjust her son in this department on compassionate grounds, and requested that this job should be reserved for her son. She further explained that because her son at that time was six years of age, as such, he would not be able to take the job unless he attains the age of majority. Although she did not write, she must have hoped that by that time, her sons also completes his education. On the above-said prayers, Smt. Shakuntla Devi requested the Senior Accountant General, A.G. Office Shimla, to reserve one post for her son till such time he attains the age of 18 years, and her son, be adjusted against the job of her husband as per entitlement on compensatory grounds. 4 5. Vide letter dated May 27, 1992 (Annexure P-2) the Office of Senior Accountant General informed Smt. Shakuntla Devi that as per the Policy in force, there is no provision to reserve the post for the future for the appointment of her son. He further informed Smt. Shakuntla Devi that in case she is interested in taking an appointment on compensatory grounds, then it would be considered. He also attached a proforma to make it handy for her to apply. He further clarified that in case she is not interested in an appointment, then when her son attains the age of 18 years, she might give an application that would be considered at that time as per the Rules. 6. This letter is full of compassion, generosity, and all the attributes of a good employer—however, Smt. Shakuntla Devi did not annex any communication which she might have reverted to this letter. The absence of averments on this aspect would make this Court believe that she did not accept the offer with the wish that when her son attains the age of 18 years, then the employer would consider his application as per the Rules, for which she was hopeful. 7. Vide letter dated Jan 20, 2005 (Annexure P-3), petitioner Rajesh Kumar, wrote to the Office of the Accountant General (Audit), 3rd respondent herein, that in reference to the communication dated May 27, 1992 (Annexure P-2), now he has 5 attained the age of 18 years and, as such, is eligible for appointment in Government service. He also sent the proforma for such an appointment to the respondent regarding the compensatory appointment. He did mention that he, along with his mother and sisters, are dependent upon the family pension and that they have no other income. 8. Vide response dated Mar 04, 2005 (Annexure P-4), the 3rd respondent informed the petitioner that they have decided that as per the Rules, if an employee dies in harness, then the dependent family member, who is otherwise entitled to claim compensatory employment, has to apply within three years of such death. He further explained that all the applications which are received after three years of death are not considered because of the Policy in force. In the said response, it is mentioned that the mother of the petitioner had been informed about such decision vide letter No. Ext- 1/compassionate appointment/2004-05/2374, dated Nov 18, 2004. 9. Feeling aggrieved, the petitioner filed Original Application before the Central Administrative Tribunal, Chandigarh Bench (Circuit at Shimla). The said Original Application was registered as OA No. 124/HP/2006. Vide order dated May 17, 2007 (Annexure P- 5), the Bench of the Central Administrative Tribunal dismissed the 6 Original Application. The learned Central Administrative Tribunal held that compensatory appointment is not a right of inheritance, which can be exercised at any time. Giving reference to the Scheme of 1998, the Central Administrative Tribunal stated that there is no provision for waiting for the dependent on attaining the age majority and after that apply for an appointment. The learned Central Administrative Tribunal further held that as per Scheme of 1998, the appointments outside a period of five years are denied on the ground that if the family was able to pull on for five years, then there was a presumption that it had reasonable sources of livelihood. Referring to the new policy issued in May 2003, the learned Central Administrative Tribunal held that it dealt with a different aspect. 10. After that, the petitioner obtained information under the Right to Information Act, 2005, from the 3rd respondent, asking them to provide the names of the persons who were given compassionate appointments from 1992 to December 2012. In response to such application the Public Information Officer concerned apprised the petitioner, vide communication dated Jan 24, 2013 (Annexure P-6), that they had appointed 16 persons under the Compassionate Appointment Scheme, and further clarified that period of three years 7 was counted from the year of the demise of the employee as per the Rules. 11. It appears that the petitioner had made another representation vide letter dated Mar 1, 2013, seeking his appointment on compassionate ground, and vide its response dated Apr 3, 2013 (Annexure P-7) the respondents informed him that the said request was considered but was not acceded to due to non-availability of vacancy. Vide another communication dated May 15, 2014 (Annexure P-8), while replying to the earlier letter dated Mar 1, 2013, the Senior Accounts Officer informed the petitioner that his request for appointment on compassionate grounds was again considered for the year 2014 but not acceded to due to non- availability of vacancy, and further informed that it would be kept for consideration in the year 2015. 12. Vide another letter, Feb 18, 2015 (Annexure P-9), the Senior Accounts Officer (Admn.) informed the petitioner that he might appear before the Screening Committee for an interview on Feb 25, 2015. 13. Vide communication dated Mar 27, 2015 (Annexure P-10), the Deputy Accountant General (Admn.), i.e., the 4th respondent herein, informed the petitioner that his case for the compassionate 8 appointment was considered sympathetically but was not found fit for compassionate appointment. 14. After that, the petitioner again sought information under the Right to Information Act, 2005, asking them to provide reasons for his rejection. In its reply, the concerned Public Information Officer, vide communication dated May 11, 2015, informed as follows: “1. The Departmental Screening Committee in its meeting held on 25th Feb., 2015 had considered the case of Shri Rajesh Kumar. The assessment for suitability for appointment on compassionate ground was done on the basis of Government of India, Ministry of Personnel, Public Grievance and Pensions (Department of Personnel & Training) O.M. No. F.No. 14014/02/2012-Estt.(D) dated 16th January, 2013 & Headquarters’ Office Circular No. 05 letter No. 109-Staff (Appt.II)/87-2011 Vol.-I dated 09.02.2012 (copy enclosed) which included various parameter i.e. Family pension Terminal benefits, dependent children, other dependent family members, immovable property, job in the family, service left and suitability for the post. The DSC has taken care of cost inflation Index of Income Tax Department which is available on the website of Income Tax Department. On the basis of above parameters, the Departmental Screening Committee had considered the case of Shri Rajesh Kumar s/o late Shri Amar Chand and his case has not been found fit for compassionate appointment.” 15. Vide Annexure P-11 (colly), attached on page 34 of the petition; the petitioner has placed reliance upon the list of candidates who appeared in the interview along with him for a compassionate appointment. The said communication reveals that the candidates at 9 Sr. No. 8 and 9 were selected. The grievance of the petitioner is that in column No. 8 – Need for immediate assistance – the petitioner was given zero marks. In contrast, these two candidates were given thirty out of thirty marks each. 16. Mr. Satyen Vaidya, learned Senior Advocate, appearing for the petitioner also argued that this condition No. 8 was not present previously, and it was introduced to adjust candidates at Sr. Nos. 8 and 9 above. 17. Without deciding the legality of this condition or going into the fact that whether it was introduced later on to accommodate these two people, what is more important is that to mention the approach of the department towards the petitioner himself. Vide letter dated Apr 3, 2013 (Annexure P-7) the Accounts Officer made the admission on behalf of the department that his request letter for appointment on compassionate grounds was not acceded due to the non-availability of vacancy. It means that according to the department, he was otherwise eligible. Similarly, a vide letter dated May 15, 2014 (Annexure P-8), the department through the Senior Accounts Officer on its own informed the petitioner that even in 2014, his request could not be considered. This was a proactive approach to the department. In letter (Annexure P-8), the Senior 10 Accounts Officer informed the petitioner that his request for compassionate appointment would be kept for consideration in the year 2015 because it could not be considered for the year 2014 due to non-availability of vacancy. After that, the department, on its own, invited the petitioner for an interview, vide letter dated Feb 18, 2015 (Annexure P-9), which he could not qualify. As such, in the light of the facts above, it does not lie in the mouth of the petitioner to contend that the respondents had added clause No. 8, intending to adjust candidates mentioned at Sr. Nos. 8 and 9 of the list of candidates, who appeared for an interview for compassionate appointment. 18. Even otherwise, the purpose of a compassionate appointment is to relieve unexpected immediate hardship and distress caused to the family on the sudden death of the earning member of a family. The department interviewed the petitioner in the year 2015, whereas he had lost his father in the year 1992. It means that for 23 years, the family of the deceased employee had survived and sustained. Thus, to say that this clause is arbitrary, is without any basis, and on the other hand, there appears valid justification for inserting this clause. 11 19. On the strength of this information, obtained under the Right to Information Act, the petitioner again filed an Original Application before the Central Administrative Tribunal, Chandigarh Bench, which was registered as Original Application No. 63/00069/2016. The Chandigarh Bench of the Central Administrative Tribunal vide order dated Jul 14, 2016 (Annexure P-12) dismissed the Original Application. The Tribunal primarily relied upon the discussions made by the Coordinate Bench of the Tribunal, while dismissing his first Original Application. The Tribunal reiterated that the compassionate appointment is not a right of inheritance, which can be exercised at any time, and the said right cannot be claimed after lapse of number of years. It further observed that the said observation holds good and instead apply with more force at this highly belated stage. The Tribunal also mentioned that the application was considered and rejected on the ground of lower marks and, as such, there was no illegality in not appointing the petitioner and thus dismissed the Original Application vide impugned order dated Jul 14, 2016 (Annexure P-12). 20. Feeling aggrieved, petitioner came up before this Court by filing the present writ petition. 12 21. The respondents filed a detailed response to this writ petition and stated that in the year 1992 at the time of the death of the employee an amount of Rs. 81,922/- was given as pensionary benefits i.e., DCRG and family pension @ Rs. 900/- per month paid at that time. Respondents explicitly stated that the Policy does not provide for reservation of any post for the future. The response further stated that private respondents. No. 5 and 6 were given an appointment because they had secured higher marks from the petitioner. In para-8 of the response, respondents No. 1 to 4 submitted that Para-19 of the Scheme for compassionate appointment under Central Government, circulated vide letter dated Jan 16, 2013 (Annexure R-3/1) provided that compassionate appointment cannot be granted after a lapse of a reasonable period of time. It is not a vested right that can be exercised at any time in the future. Respondents further contended that the object of the grant of compassionate appointment is to enable the family to tide over crises, and to relieve the family from financial destitution and to overcome the financial emergency. In para-14 to 16, the respondents No. 1 to 4 further clarified that while calculating the number of terminal benefits, they had applied the Cost Inflation 13 Index of the Income Tax Department, and such amount had to be construed given the inflation. 22. The most contentious communication is Annexure P-7 whereby the Accounts Officer made the admission on behalf of the respondent/department by mentioning that request of the petitioner for appointment on compassionate grounds was considered but not acceded to due to non availability of vacancy and that it would be kept in view for future consideration. It was a quit pro quo act on the part of the Accounts Officer of the Department. It appears that the Officers of the Department put themselves in the shoe of the father of the petitioner in all generosity, forgetting that jobs are right of every eligible person and are subject to the reservation policy. 23. It would be appropriate to refer to the judicial precedents on the issue: (a) In Umesh Kumar Nagpal vs. State of Haryana & others, (1994) 4 SCC 138 the Supreme Court holds as follows:-. “2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of 14 the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, 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. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. , relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. 3. Unmindful of this legal position, some governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible. 4. It is for these reasons that we have not been in a position to appreciate judgments of some of the High courts which have justified and even directed compassionate employment either as a matter of course or in posts above Classes III and IV. We are 15 also dismayed to find that the decision of this court in Sushma Gosain v. Union of India, (1989) 4 SCC 468, has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above Classes III and IV.” … (b) In Jagdish Prasad vs. State of Bihar & another, (1996) 1 SCC 301, the Supreme Court holds as follows: “2. The High Court had dismissed the writ petition seeking appointment of the appellant on compassionate grounds. The admitted fact is that he was four years’ old at the time when his father died in harness in the year 1971. He filed the writ petition after attaining majority in 1994 for a direction to appoint him on compassionate grounds which was negatived. 3. It is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that, therefore, the court is required to examinewhether the appointment should be made on compassionate grounds. We are afraid, we cannot accede to the contention. The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased government servant which cannot be encouraged, de hors the recruitment rules.” (c) In MGB Gramin Bank vs. Chakrawarti Singh, (2014) 13 SCC 583 the Supreme Court holds as follows: “6. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family, which has lost its bread-earner. Mere death of a Government employee in harness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to 16 meet the crisis, that a job is to be offered to the eligible member of the family. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years. 7. In Umesh Kumar Nagpal v State of Haryana & Ors., (1994) 4 SCC 138, this Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court observed as under: \"2. ...The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. ... The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned. 4,. The only ground which can justify compassionate employment is the penurious condition of the deceased's family. * * * 6. ... The consideration for such employment is not a vested right….. The object being to enable the family to get over the financial crisis.\" [emphasis added] 8 An 'ameliorating relief' should not be taken as opening an alternative mode of recruitment to public employment. Furthermore, an application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated. 9. The Courts and the Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments. 10. In A. Umarani v Registrar, Co-operative Societies & Ors., (2004) 7 SCC 112, while dealing with the issue, this Court held that 17 even the Supreme Court should not exercise the extraordinary jurisdiction under Article 142 issuing a direction to give compassionate appointment in contravention of the provisions of the Scheme/Rules etc., as the provisions have to be complied with mandatorily and any appointment given or ordered to be given in violation of the scheme would be illegal. 11. The word 'vested' is defined in Black's Law Dictionary (6th Edition) at page 1563, as “Vested-, Fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights.” 12. In Webster's Comprehensive Dictionary (International Edition) at page 1397, 'vested' is defined as Law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest. Bibi Sayeeda v State of Bihar, (1996) 9 SCC 516; and J.S. Yadav v State of Uttar Pradesh, (2011) 6 SCC 570. 13. Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/ scheme could be changed. (Vide: Kuldip Singh v Government, NCT Delhi, (2006) 5 SCC 702) 14. 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. vs. 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.\" 18 15. 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. vs. Raj Kumar, (2010) 11 SCC 661 , this Court held that in such a situation, the case under the new Scheme has to be considered. 16. In view of the above position, the reasoning given by the learned Single Judge as well as by the Division Bench is not sustainable in the eyes of law. The appeal is allowed and the impugned judgments of the High Court are set aside.” 24. Given above observations, the present writ petition is dismissed. Pending application(s), if any, also stand disposed of accordingly. No order as to costs. (Dharam Chand Chaudhary), Judge. (Anoop Chitkara), Judge. March 11 , 2020 (PK) "