Durgesh Kumar Pandey vs Bharat Sanchar Nigam Limited & Ors.

The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, seeking quashing of the impugned order dated 04.01.2020 and reconsideration of his claim for compassionate appointment. The reliefs prayed for by the applicant are as under:-

The brief facts of the case are that the applicant, Durgesh Kumar Pandey, is the son of Late Shri Gopal Ji Pandey, who was working as a Phone Mechanic in Madua Deeh Exchange, Varanasi, BSNL, and died on 08.07.2003 while in service. After the death of his father, the applicant and his sister, namely Priyanka Pandey, were left in financial distress. The applicant, who had passed the Intermediate examination, submitted his first application for appointment on compassionate grounds on 31.10.2003, along with the requisite documents. Thereafter, his case was processed by the respondents and certain further documents/information were sought from him. Despite submission of the requisite documents, his case remained pending for several years. Ultimately, the applicant was informed that his claim for compassionate appointment had been rejected by the competent authority vide order dated 09.01.2012, which was challenged by him before this Tribunal in O.A. No. 1309 of 2012. The said Original Application was allowed by the Tribunal vide order dated 07.11.2019, whereby the orders dated 09.01.2012 and 09.09.2011 were quashed and the respondents were directed to reconsider the applicant's claim for compassionate appointment by passing a reasoned and speaking order. Pursuant thereto, the applicant submitted a certified copy of the Tribunal's order to the respondents. However, vide the impugned order dated 04.01.2020, the applicant's claim for compassionate appointment was again rejected. Aggrieved by the said order, the applicant has filed the present Original Application.

Learned counsel for the applicant submitted that the impugned order dated 04.01.2020 has been passed without properly appreciating the facts and circumstances of the case and without complying with the directions contained in the Tribunal's order dated 07.11.2019. It was submitted that the applicant’s father died in harness on 08.07.2003, leaving the family in financial hardship, and that the applicant had applied for compassionate appointment within a reasonable period thereafter. Learned counsel further submitted that the applicant’s case had remained pending with the respondents for several years and that, despite the prolonged pendency, his claim was rejected primarily on the basis of the assets, limited liabilities and financial condition of the family, without proper assessment of the actual circumstances prevailing in the family. It was also submitted that the family pension had already been stopped after March, 2008, and that the terminal benefits received by the applicant's family had been utilized, inter alia, for the marriage of his sister in the year 2007. Learned counsel contended that the respondents failed to properly consider the relevant material and the fact that the Tribunal, while allowing O.A. No. 1309 of 2012, had specifically found the earlier rejection orders to be unreasoned and cryptic and had directed reconsideration of the applicant’s claim by a reasoned and speaking order. It was, therefore, argued that the impugned order, being contrary to the aforesaid directions and the relevant scheme governing compassionate appointment, is liable to be set aside.

Per contra, learned counsel for the respondents submitted that the claim of the applicant for appointment on compassionate grounds has already been considered by the competent authority in accordance with the applicable rules, guidelines and policy, and his claim was rejected vide order dated 09.09.2011. It was further submitted that, pursuant to the order dated 07.11.2019 passed by this Tribunal in O.A. No. 1309 of 2012, the applicant’s case was reconsidered by the competent authority and, upon such reconsideration, his claim was again rejected vide a reasoned and speaking order dated 04.01.2020. Learned counsel contended that compassionate appointment is not a matter of right and is intended only to enable the family of a deceased employee to tide over the sudden financial crisis caused by his death in harness. In the present case, the deceased employee died in July, 2003, and more than twenty years have elapsed since his death. Therefore, the very object of compassionate appointment would not be served by granting such appointment at this belated stage. Learned counsel, accordingly, submitted that the applicant is not entitled to the relief claimed in the present Original Application.

Learned counsel for the respondents, in the counter reply, submitted that the applicant’s case for compassionate appointment was processed in accordance with the prevailing guidelines. It was stated that, during scrutiny of his case, certain shortcomings were noticed and the requisite clarifications/documents were obtained from the concerned office. Thereafter, his case, along with the relevant weightage points, was placed before the Circle High Power Committee, and, on the basis of its recommendation, the case was forwarded to the BSNL Corporate Office, New Delhi for final consideration. The Corporate Office examined the case in the light of the applicable Compassionate Ground Appointment Scheme, the DoP&T Office Memorandum dated 09.10.1998 and BSNL Corporate Office letter dated 27.06.2007, and observed that the family of the deceased official was not found to be living in penury. The claim was accordingly recommended for rejection on the basis of the assets, limited liabilities and overall financial condition of the family, which decision was accepted by the competent authority and communicated to the applicant. It was further submitted that the competent authority had considered various relevant factors, including the number of dependent family members, terminal benefits, family pension, liabilities, unmarried daughter(s), minor children and movable/immovable property left by the deceased employee. The respondents also stated that the applicant was not unemployed and had submitted an income certificate, and that, after the marriage of his sister on 20.05.2007, the applicant became the eligible person for family pension, which was payable to him up to 30.04.2008 and thereafter stopped in accordance with the applicable pension rules. The respondents further relied upon the BSNL guidelines and the assessment of weightage points made in the applicant’s case to contend that the rejection order dated 04.01.2020 was passed strictly in accordance with the applicable compassionate appointment guidelines.

Learned counsel for the applicant, in rejoinder to the counter reply, submitted that the respondents have misconceived the facts and have failed to comply with the specific directions contained in the order dated 07.11.2019 passed by this Tribunal in O.A. No. 1309 of 2012, whereby the respondents were directed to reconsider the applicant’s claim for compassionate appointment and dispose of the same by a reasoned and speaking order. It was submitted that, despite the aforesaid direction, the respondents again rejected the applicant’s claim vide order dated 04.01.2020, relying upon the letter dated 09.04.2019, which had already been considered in the earlier proceedings. Learned counsel further submitted that the respondents have sought to mix up the issue of compassionate appointment with direct recruitment and that the object of compassionate appointment is to provide relief to the dependent family of an employee who dies in harness. It was also submitted that the mere receipt of benefits under various welfare schemes cannot, by itself, be a ground for rejection of the claim for compassionate appointment and that no proper reason has been disclosed as to why the family was not considered to be living in penury. Learned counsel further contended that reliance upon the BSNL Corporate Office letter dated 27.06.2007 was also misconceived, as this Tribunal had specifically observed in its earlier order that the said letter could not have been taken into consideration since it did not exist on 08.07.2003, i.e. the date of death of the applicant’s father. It was, therefore, submitted that the impugned order dated 04.01.2020, having been passed in disregard of the findings and directions contained in the Tribunal’s earlier order dated 07.11.2019, is liable to be set aside and quashed.

Learned counsel for the applicant also placed reliance on the D.O.P.T. Policy No. 14014/6/1994-Estt. dated 09.10.1998, and submitted that the scheme for compassionate appointment was required to be given effect to in accordance with the said policy and could not be bypassed by the respondents. It was further submitted that the claim of the applicant for appointment on compassionate grounds was required to be considered in accordance with the scheme and policy governing such appointment and that the subsequent decision of the Corporation to suspend the scheme could not defeat the applicant’s claim, which had arisen prior thereto. Learned counsel also referred to the judgment of the Hon’ble Supreme Court in N.C. Santhosh v. State of Karnataka & Others, (2020) 7 SCC 617, regarding consideration of a claim for compassionate appointment with reference to the rules and policy applicable thereto.

Learned counsel for the respondents placed reliance on the judgment of the Hon’ble Supreme Court in Umesh Kumar Nagpal v. State of Haryana & Others, (1994) 4 SCC 138, and submitted that compassionate appointment is an exception to the general rule of recruitment and is intended only to enable the family of a deceased employee to tide over the sudden financial crisis arising on account of his death; it does not confer any vested or fundamental right upon the dependent to claim appointment at any point of time. Learned counsel further submitted that the claim is required to be considered in accordance with the scheme and policy applicable to the case and on the basis of the financial condition and circumstances of the family. Learned counsel also placed reliance on Ajit Kumar Nag v. G.M. (P.J.), Indian Oil Corporation Limited, (2005) 7 SCC 764, with regard to the distinct corporate status and independent functioning of the Corporation. It was further submitted that the Corporation had taken a decision to suspend the scheme of compassionate appointment and thereafter continued such suspension until further orders and, therefore, the applicant could not claim appointment contrary to the policy in force.

I have heard Mr. A.K. Dave, learned counsel for the applicant, and Mr. D.S. Shukla, learned counsel for the respondents, at length and have carefully perused the pleadings, documents and material available on record.

I have considered the rival submissions advanced by learned counsel for the parties and have carefully perused the pleadings, documents and material available on record. The claim of the applicant for appointment on compassionate grounds cannot be examined merely on the ground that a considerable period has elapsed since the death of his father. Undoubtedly, as held by the Hon’ble Supreme Court in Umesh Kumar Nagpal v. State of Haryana & Others, (1994) 4 SCC 138, compassionate appointment is an exception to the general rule of recruitment and is intended to enable the family of a deceased employee to tide over the sudden financial crisis arising on account of his death, it does not confer any vested right upon the dependent to claim appointment at any point of time. However, in the present case, the record shows that the applicant submitted his application for compassionate appointment on 31.10.2003, his case remained under consideration with the respondents for several years, and the first rejection was made only vide order dated 09.01.2012, which was subsequently quashed by this Tribunal in O.A. No. 1309 of 2012 vide order dated 07.11.2019, with a direction to reconsider the claim by passing a reasoned and speaking order. Thus, the mere passage of time cannot, in the facts of the present case, be treated as a circumstance attributable solely to the applicant. The Hon’ble Supreme Court in Malaya Nanda Sethy v. State of Orissa & Others, (2024) 15 SCC 766 [2022 SCC OnLine SC 684], has also emphasized that where the delay in consideration of a claim for compassionate appointment is attributable to the authorities, such delay should not operate to the prejudice of the applicant.

In the present case, the impugned order dated 04.01.2020 is required to be examined in the light of the specific directions contained in the earlier order dated 07.11.2019 passed by this Tribunal in O.A. No. 1309 of 2012. The relevant portion of the impugned order, whereby the applicant’s claim was rejected, reads as under:-

From perusal of the aforesaid reasoning, it is evident that the respondents, while considering the applicant’s case pursuant to the order dated 07.11.2019, relied upon the BSNL Corporate Office letter dated 09.04.2019, whereby the policy of compassionate ground appointment was kept in abeyance for three years in respect of vacancies arising after 01.04.2018, including unfilled vacancies. The impugned order further records that, on examination of the vacancy position for the years 2008-09 to 2017-18, there were no unfilled vacancies in UP (East) before 01.04.2018. However, the earlier order dated 07.11.2019 passed by this Tribunal had already considered the said policy position and observed that the policy related to vacancies arising after 01.04.2018, whereas the case of the applicant was prior to 2018 and, therefore, his case was required to be considered by the appointment committee. In such circumstances, rejection of the applicant’s claim merely by relying upon the subsequent policy of keeping compassionate ground appointments in abeyance and the absence of unfilled vacancies before 01.04.2018 does not satisfactorily demonstrate compliance with the specific directions contained in the earlier order of this Tribunal. The respondents were required to reconsider the applicant’s claim in accordance with the applicable scheme/policy and in the light of the observations and directions contained in the order dated 07.11.2019, instead of treating the subsequent policy dated 09.04.2019 as a ground to reject the claim.

Accordingly, the Original Application is allowed. The impugned order dated 04.01.2020 is hereby quashed and set aside. The Respondents/Competent Authority is directed to reconsider the claim of the applicant for appointment on compassionate grounds, and the applicant’s claim shall be placed before the Circle High Power Committee (CRC), whenever the said Committee is held, for consideration, strictly in accordance with the applicable rules/guidelines and in the light of the observations and directions contained in the order dated 07.11.2019 passed by this Tribunal in O.A. No. 1309 of 2012. The outcome of the same shall be communicated to the applicant by passing a reasoned and speaking order within a period of three months from the date of consideration of his claim by the Circle High Power Committee (CRC). There shall be no order as to costs. 14. All pending Miscellaneous Applications, if any, stand disposed of.