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Judgment
Mr. Anant S. Dave, J.—This petition under Articles 226 and 227 of the Constitution of India is filed by the petitioners challenging the decision dated 10.02.2016 passed in Original Application No.260 of 2014, whereby directions are given to the petitioners to reconsider the claim of the applicant-respondent herein for appointment on compassionate ground from the date on which any dependent of the BSNL employee who secured the equal number of points has been recommended and appointed. Further, the respondents were directed to complete exercise of considering the case of the applicant as soon as possible, but not later than 3 months from the date of receipt of the copy of the order. According to the petitioner-BSNL, father of the present respondent died in harness while working as regular Majdoor and original applicant was adopted son of the deceased employee. On 05.02.2003, an application was made for details of credit amount in GPF account, pension amount and for other benefits and along with the above application, adoption deed dated 08.01.2013 was annexed, which was executed a few days before death of the deceased employee. While staking claim for the above amount, no mention was made about appointment on compassionate ground. Even subsequently also, the applicant addressed letter with regard to family pension, in which also, there was no claim about appointment on compassionate ground. At the same time, Jayaben approached BSNL for grant of compassionate appointment and retirement dues of the deceased employee, who was father of said Jayaben and dispute persisted for rightful claim in dues of deceased employee with Department between daughter of deceased employee and adopted son-claimant therein and respondent herein. Upon resolution of dispute and on availability of succession certificate, the Department cleared all requisite dues to be paid and belated claim was made by respondent for compassionate appointment and it was considered as per the existing scheme framed in accordance with law, whereby a method was adopted to award points under various heads to determine eligibility of the claimant, viz. legal heir and survivor of deceased employee. That all Heads of Telecom Circles were informed about compassionate ground appointment (CGA) by communication dated 27.06.2007 and Annexure-1 to the above communication provided weightage point system for assessment of indigent condition which included items with positive points (A) and items with negative points (B).
Thus, according to learned Counsel for the petitioners, the case of the claimant-respondent herein was considered and was found ineligible to be considered and appointed on compassionate ground.
In the facts of the present case, as per the guidelines of year 2007 of CGA, the respondent claimant failed to get 55 points necessary for consideration of his claim for CGA and in absence of any material on record about receipt of application dated 14.08.2003, formula of weightage point applied by the Department cannot be said to be contrary to the scheme of 2007 and method adopted by the Tribunal in arriving at a finding about eligibility of the respondent claimant is based on incorrect application of the formula of the weightage point. Under no circumstance, the Tribunal could have come to conclusion that deduction of 5 point for 6 months and 23 days is not acceptable and that Department is not justified in deducting 25 points out of total 60 points. Learned Counsel for the petitioners emphasized and submitted that conclusions drawn in para-23 are not only perverse but under no circumstance, could not have been reached. If the items with positive points and items with negative points are considered, a simple arithmetic calculation about total weightage point dis entitled the respondent claimant from being considered and appointed on compassionate ground.
On the ground about certificate on record claimed by the respondent that initial and earliest representation dated 14.08.2003 was submitted, an affidavit was filed by the competent officer stating on oath that no such application was received by the Department and the same is believed by the Tribunal for which conclusion is drawn that the applicant had not submitted his representation on 14.08.2003. Learned Counsel has taken us to various applications submitted by the respondent towards getting dues of the deceased employee, including legal notice given by Advocate on his behalf, but at no point of time, any claim was made for compassionate appointment and this, in the writ petition filed by the petitioner, it is clear that the method adopted by the Tribunal for giving weightage point for assessment of indigent condition of the respondent herein is totally contrary and impermissible.
It is submitted that the scheme of compassionate appointment framed by the petitioner-BSNL is based on consideration to provide immediate succor to the survivor of the family of deceased employee and no indefeasible right can be claimed by any legal heir or survivor contrary to the policy of compassionate appointment. Otherwise, it would run counter to Articles 14 and 16 of the Constitution of India. The weightage point formula takes into consideration all relevant aspects including dues of deceased employee, viz. DCRG, GPF /EPF, residential accommodation in rented premises or otherwise and whether spouse is earning member and monthly income and if spouse is not earning member, what is source of livelihood. Further, time taken for making the claim for compassionate appointment, whether it is belated, within time and for every block of 5 years, points are given and finally, if net points below 55 are available, the claimant would be considered for compassionate appointment subject to fulfilment of other requirements and if a claimant is awarded 54 or less, shall be treated as not indigent and claim of compassionate appointment will not be processed any further.
Thus, it is submitted that under no circumstance, the respondent herein was eligible to be appointed on compassionate ground in terms of the existing policy of 2007 framed by the Department for compassionate appointment.
Therefore, the order impugned directing the petitioners to reconsider the case of the respondent herein for compassionate appointment requires to be interfered with and the order impugned be quashed and set aside.
As against above, Shri Dipak Sindhi, learned Advocate appearing for the respondent-claimant would contend that there is no dispute about date of death of the deceased employee and registered adoption deed and that succession certificate granted in favour of the respondent in Civil Misc. Application No. 21 of 2003 on the basis of registered adoption deed dated 08.01.2003 by learned Civil Judge (SD), Mahesana. According to him, an application was preferred for appointment on compassionate ground on 14.08.2003 and thereafter, a claim was submitted in Form 12 and 14 for gratuity and family pension on 17.12.2003. However, in view of the dispute about succession, City Civil Judge, Ahmedabad, also issued succession certificate to Jayaben, daughter from the divorced wife of deceased employee on 07.02.2008 in Civil Misc. Application No. 87 of 2005. Said Jayaben filed SCA No. 10533 of 2008 before this Court on 20.08.2008, in which an order was passed on 15.09.2008 in Civil Application No.10837 of 2008 by which the respondent herein was allowed to be joined as a party and by an order dated 27.11.2008, transferred SCA No.10533 of 2008 to CAT, Ahmedabad Bench which was numbered as TA No.80 of 2009. In the above TA, an order was passed on 06.07.2009. While disposing of the application, the petitioners herein were directed to pass a speaking order within three months and immediately on 08.08.2009, respondent herein made a representation through his Advocate with a request to grant appointment on compassionate ground and to give other benefits of PF, gratuity, pension accruing out of death of deceased employee. On 22.10.2010, legal notice was sent to the Department by Advocate seeking compliance of the order dated 06.07.2009 of the Tribunal and a communication was received from the Department that the application will be decided in accordance with law. In view of the understanding reached and compromise arrived between the respondent herein and daughter of the deceased employee, who was married, respondent herein was allowed to stake claim for compassionate appointment. Thereafter, as the Department did not comply with order dated 06.07.2009 passed in TA No.80 of 2009 within three months, contempt petition was filed, which was converted into execution application, in which notices were issued. Pending the execution application, a speaking order dated 27.02.2012 was passed which was, of course, titled as draft order in which amount towards GPF, gratuity and other arrears of salary, leave, etc. was determined and so far as compassionate appointment is concerned, married daughter of deceased employee would not be eligible to apply for compassionate appointment and therefore, Shri Bharat Makwana-respondent herein would be eligible for compassionate appointment according to Government Rules and BSNL Rules, order, etc. Hence, he may apply for compassionate appointment (Group-III or Group-IV post) according to the Rule. Further, he was informed to apply for the compensate appointment and as per his eligibility, he will be considered. On the basis of above order, CAT disposed of Execution Application No.38 of 2011 in TA No.80 of 2009. Even after disposal of the above Execution Application, as PF dues and other benefits were not released by the Department, legal notice dated 13.04.2012 was issued in which it was stated that needful is being done for paying post-death benefits. Again, no benefits were given and correspondence between the respondent and the Department continued and finally on 18.02.2013, post-death benefits of deceased employee were paid. Thereafter, the respondent herein was called upon to submit additional documents in support of his claim. So far as compassionate appointment of the respondent is concerned, the claim was decided in terms of policy guidelines for CGA dated 27.06.2007 and by order dated 25.06.2013 and 30.07.2013, request of the respondent claimant was turned down.
According to Shri Dipak Sindhi, learned Advocate for the respondent, he sought certain information under Right to Information Act and thereafter preferred OA No.260 of 2014 before CAT, Ahmedabad, in which replies and rejoinders were filed. A fact finding exercise was undertaken by CAT, directing the petitioners to produce Inward Tapal Register of the office of the General Manager, BSNL, Mahesana of the Months of August to October 2003 and to verify whether the petitioners had received application for CGA dated 14.08.2003 and finally, on 08.07.2015, petitioners produced one register of the office of the Accounts Department of General Manager, BSNL, Mahesana for the above period and had pointed out to the Tribunal that no entry of application dated 14.08.2003 was there in the record and subsequently, an affidavit was filed by the officer that old record was destroyed and Inward Register of the concerned Department was not available. The above fact was believed by the Tribunal, but in view of the final conclusion and order passed by the Tribunal upholding the claim of the respondent herein for compassionate appointment, it was thought fit by respondent not to challenge the above finding.
Shri Dipak Sindhi, learned Counsel appearing for the respondent has heavily relied on CGA policy dated 27.06.2007 and Clause-3.0, whereby mandatory duty is cast upon the Welfare Officer of the Circle or the Unit to meet the members of the family of the ex-employee immediately after his death /medical invalidation to advise and assist them in completing necessary formalities including filling up of details in prescribed proforma and other details needed as per weightage point system and verify it with the official records. Thereafter, such application forms were to be scrutinized by preferring check-list as provided and decision is to be taken accordingly. It is submitted that no such exercise was undertaken at any point of time and on the contrary, draft order in the year 2012 was produced, prima facie indicating eligibility of the respondent herein.
25.11.2016
Having heard learned Counsel appearing for the parties, perusal and consideration of the record made available along with the impugned judgment of CAT, Ahmedabad Bench, we find compassionate ground appointment (CGA) policy guidelines were communicated to all Heads of Telecom Circles by Assistant Director General (Pers. IV) of BSNL Corporate Office on 27.06.2007. The above policy was framed pursuant to the decision taken to bring uniformity in assessment of indigent condition of the family for offering compassionate appointment in view of certain developments. To standardize guidelines for eligibility for appointment on compassionate grounds in conformity with DIPT guidelines, a weightage point system was introduced. However, para-2 of the above communication clearly states that policy guidelines on compassionate ground appointment issued by DOPT on October 9, 1998 was to continue and to introduce weitage point system as per the details given at Annexure-1 and the assessment criteria for recommendation of the indigent condition of the family by the Circle High Power Committee prescribed formula as per Annexure-1. Para-3 of the above policy reads as under:-
"3.0 Keeping in view the provisions of weightage point system, the procedure for processing the cases of compassionate appointment shall now be as below:-
(i) The Welfare Officer of the Circle/SSA/Unit will meet the members of the family of the ex-employee immediately after his death/medical invalidation to advise them about provisions of the scheme and assist them in completing necessary formalities in filling up details in prescribed proforma i.e. proforma Para ''A'' (as in Annexure of the DOPT scheme) and other details needed as per weightage point system and verify it with the official records. The office concerned will fill up the Proforma Part ''B'' as per the existing practise.
(ii) The SSA/Unit concerned will scrutinise the application and prepare check-list according to the weightage point system (Proforma enclosed at Annexure-II) for the purpose of assessment of indigent condition of the family.
(iii) The Check-list (in the format of Annexure-II), Proforma Part ''A'' and Proforma Part ''B'' complete in all respects, along with supporting details, shall be sent to concerned Territorial Circle for further processing."
Others paras, viz. 4, 5 and 6 provided procedure to be followed while applying weightage point system, scrutiny of supporting documents including check list for consideration and decision by Corporate Office and intimation to be given about rejection of the request by concerned circle through a speaking order and even provision of an appeal for reconsideration of the already rejected cases and decision to be taken finally by High Power Committee of the Corporate Office with the approval of competent authorities.
In the facts of the present case, submission of application dated 14.08.2003 by respondent-claimant, for which no record is available as stated in the affidavit and so believed by CAT as per the impugned judgment, but fact about submission of form-12 and 14 for gratuity and family pension by the respondent-claimant on 17.12.2003 is not in dispute. Further, succession certificate granted to the present respondent based on registered adoption deed dated 08.01.2003 and order passed by learned Civil Judge (SD), Mahesana issuing such succession certificate on 13.08.2003 and rival claim by daughter Jayaben of the deceased, who was also granted succession certificate by learned City Civil Judge, Ahmedabad Court on 07.02.2008 and awareness of the Department about the same, surfaces on record. Even for receiving post-death benefits of deceased employee like PF, gratuity and pension, respondent and daughter of the deceased and adopted son had to undertake round of litigation before CAT as well as High Court and only when order passed by the CAT, which was not complied with within three months, execution petition was filed, in which draft order dated 27.02.2012 was produced, which revealed two main aspects, viz. Entitlement of the amounts of GPF and gratuity and dividing total amount amongst adopted son-respondent herein and daughter of the deceased equally and so far as compassionate appointment is concerned, it was found that married daughter of deceased Gafurbhai Makwana would not be eligible to apply for compassionate appointment and therefore, Shri Bharatbhai G.Makwana will be eligible for compassionate appointment according to Rules of BSNL and Rules governing the subject. Further, it was stated that respondent herein may apply for compassionate appointment (Group-III or Group-IV post) according to Rules and he was informed to apply for the compassionate appointment and as per his eligibility, he would be considered for the appointment accordingly. He was to approach BSNL office within 7 days of receipt of the order. On the strength of above draft order, which was produced on record of Execution Application No.38 of 2011 before CAT, a statement was made by learned Advocate on behalf of the applicant that order of the Tribunal was complied with and he was not willing to proceed with the matter and the execution application came to be disposed of.
Thus, the events which have taken place from 2003 onwards, including death of deceased, which took place on 16.01.2003 and survivors, viz. Legal heirs of the deceased who staked their claim for gratuity, PF and other dues, the Department was in know of the fact of their existence and as per the CGA policy guidelines, they were duty bound to inform claimants, legal heirs and survivors in view of specific mandate in Clause-3, so reflected in communication dated 27.06.2007. Usage of word "shall" in above para-3 while undertaking the procedure for processing the case, cast an obligation upon the Welfare Officer of the circle or the concerned unit to meet the members of the family ex-employee immediately after his death /medical invalidation, as the case may be and to advise them about the provisions of the scheme and assist them in completing necessary formalities in filling up of details in prescribed proforma so prescribed by the Department and other details as per the weightage point system and verify it with the official records. No such procedure is followed by any of the officers, informing or intimating the policy decision of CGA and aspect of delay is taken into consideration by awarding minus point making respondent-claimant ineligible for CGA. Having failed to perform duty cast under mandate of SGA guidelines, it would be unjust and unreasonable on the part of the Department BSNL treating the claim of the respondent as belated.
The exercise undertaken by the CAT of calculating the points to be awarded to the applicant and conclusion drawn in para-23 reads as under:-
"23. Ms. R.R. Patel herself categorically admits the fact that from 16.1.2013 to 15.1.2008 no points can be deducted. As already observed, the reply confirms the fact that the application was available with them anterior to 08.8.2009. As such the points that can be deducted for belated request shall be for the period from 16.1.2008 to 15.1.2009. The contention of Ms. R.R.Patel that the application was submitted on plain paper for the first time on 08.8.2009, therefore, another 5 points had to be deducted cannot be accepted for the reason that the order dated 27.62007 does not provide that half of the year should be treated as a whole year. Thus, it is clear that the applicant is entitled to get 55 net points which shall be prima facie treated as eligible for consideration by the Corporate High Power Committee for compassionate ground appointment. Accordingly, I conclude that the respondents are not justified in deducting 25 negative points out of the total 60 points."
Thus, initially for block of first 5 years from the date deceased, i.e. 16.01.2003 to 15.01.2008, points are not deducted and that is acceptable to both parties. However, fact remains that in view of clear mandate of CGA casting obligation upon BSNL to inform surviving members /legal heirs of the deceased employee about scheme of grant of compassionate appointment, also remained undisputed, to which reference is already made in para-11 of this judgment in detail. As expected of BSNL in such cases of compassionate appointment after round of litigation and even in the facts of the case, nature of litigation undertaken by respondent-claimant coupled with the fact that on 27.02.2012, a draft order was produced resolving the dispute amongst daughter of the deceased and adopted son-respondent herein, holding him eligible and to apply to the Department since daughter of the deceased was married, we are of the view that under no circumstances, point could have been deducted under the head of belated application.
Even record of the accompanying paper book containing various documents reveals that though various orders were passed by CAT to produce Inward Register of the office of the General Manager, BSNL, Mahesana of the Months of August to October 2003, no such record was produced and the affidavit was filed that the record was destroyed. Though above fact was accepted by the CAT, we have our own doubt that how Inward Register of Department of Government could have been destroyed and even guidelines of CVA in this regard, viz. destruction of record of the Government, permits certain types of record and not the original record. Contention raised on behalf of learned Advocate for the petitioner BSNL that application dated 14.08.2003 submitted by respondent herein was concocted and not submitted along with original application, but was annexed with the subsequent pleadings, is not only misconceived but contrary to record as even CAT held that the above application produced by respondent had no supportive or authenticated record. However, the fact remains continuous persuasion of the claim for compassionate appointment by respondent undergoing round of litigation culminating into direction being issued by CAT to reconsider case is found valid and legal, warranting no interference by this Court in exercise of Articles 226 and 227 of the Constitution of India.
Before parting, we feel legitimate and rightful claim of respondent-survivor of deceased employee is denied by the petitioner despite clear mandate in the guidelines of providing immediate succor to the members of bereaved family by informing them of the scheme immediately. No such task is undertaken by the petitioner and the respondent is subjected to undertake process of law from time to time. A case is made out to award cost, but under the circumstances, we refrain to do so. At this stage, learned Counsel for the petitioner requested to stay implementation of this order, to which we are not inclined to do so.