Gopesh Chandra Sonkar vs Union Of India & Ors.

The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-

The brief facts of the case are as follows: The father of the applicant, Late Ramesh Chandra Sonkar, was employed in the respondents’ department and died while in service on 20.10.2009, leaving behind his wife, Maya Sonkar, the applicant and one unmarried daughter. Immediately thereafter, the applicant’s mother approached the competent authority for compassionate appointment of the applicant. It is further pleaded that the candidature of the applicant was considered in the years 2010, 2011 and 2012, but no recommendation for compassionate appointment was made. Thereafter, the applicant and his mother repeatedly approached the concerned authority, but no action was taken. The applicant then approached this Tribunal by filing O.A. No. 842 of 2021, which was decided on 18.11.2021 with a direction to the competent authority to decide the pending representation dated 04.02.2021 by passing a reasoned and speaking order. In compliance with the aforesaid direction, the applicant’s representation was rejected vide the impugned order dated 05.01.2022. It was observed that the matter had been closed in the year 2012 and although verification was again made in the year 2016, the case was not found fit for reconsideration. The applicant has challenged the said order mainly on the ground that the restriction of considering a candidature for compassionate appointment only three times had already been withdrawn. It is again pleaded that the respondents ought to have considered the case of the applicant by taking into consideration the financial condition of the family. According to the applicant, this aspect has not been considered and the impugned order is cryptic and unreasoned. Accordingly, a prayer has been made to allow the O.A. and direct the respondents to reconsider the case of the applicant in accordance with the applicable guidelines.

A counter affidavit has been filed by the respondents, denying the facts stated in the O.A. It has been stated that the candidature of the applicant was considered on three occasions. In the year 2016 also, an enquiry was conducted but the case of the applicant was not found fit for reconsideration. Accordingly, the representation of the applicant was decided by the impugned order. It has further been stated that although the restriction regarding consideration of candidature for compassionate appointment only three times has been withdrawn and no specific time limit has been prescribed, the case of the applicant was still not found fit for reconsideration. It is, therefore, submitted that the impugned order does not suffer from any illegality or infirmity and the O.A. is liable to be dismissed.

A rejoinder affidavit has also been filed by the applicant reiterating the facts stated in the O.A. It has specifically been stated that, in view of Office Memorandum dated 26.07.2012 and the earlier O.M. dated 05.05.2003, which prescribed a period of three years for consideration of cases for compassionate appointment had been withdrawn. It has further been stated that cases of compassionate appointment are to be considered in terms of the instructions issued vide O.M. dated 09.10.2018, as amended from time to time.

I have heard Ms. Aditi Kesarwani, learned counsel for the applicant, and Sri Prabhav Srivastava, learned counsel for the respondents, and have perused the record.

Submission of learned counsel for the applicant is that the impugned order dated 05.01.2022 suffers from illegality and infirmity. Although the said order is an administrative order, no reasons have been given for rejecting the claim of the applicant. It is further submitted that the respondents ought to have examined the financial condition of the family before taking a decision on the claim for compassionate appointment. Since this aspect has not been considered, the impugned order is liable to be set aside. In support of her submissions, learned counsel for the applicant has placed reliance upon the following judgments:

In rebuttal, learned counsel for the respondents submitted that there is a ceiling of 5% of the vacancies falling under direct recruitment for consideration of cases for compassionate appointment. The Screening Committee considered the case of the applicant in the years 2010, 2011 and 2012. Again, on the representation of the applicant, an enquiry was conducted in the year 2016, but the case was not found fit for reconsideration. It is submitted that the impugned order was passed on the basis of the enquiry conducted by the competent authority. Learned counsel for the applicant further submitted that a considerable period has passed since the death of the applicant’s father and the family has survived during this period. Therefore, it can be presumed that the financial crisis, if any, no longer exists. It is further submitted that withdrawal of the earlier three year time limit does not confer an unfettered or perpetual right upon a person to claim compassionate appointment even after 16 years of the death of the employee. Accordingly, the O.A. is liable to be dismissed. Learned counsel for the respondents has placed reliance upon the following judgments:

I have considered the rival submissions made by learned counsel for the parties, the written submissions filed on behalf of the respondents and have gone through the entire record.

From the record, it is evident that the applicant’s father died in the year 2009. The candidature of the applicant for compassionate appointment was considered by the respondents in the years 2010, 2011 and 2012. It is also evident that thereafter the applicant repeatedly requested reconsideration of his case. When no action was taken, the applicant approached this Tribunal by filing O.A. No. 842 of 2021, which was decided on 18.11.2021 with a direction to the competent authority to decide the representation of the applicant. In compliance with the aforesaid direction, the respondents passed the impugned order. Although the impugned order/letter, issued by the Senior Accountant General, mentions that re-verification was conducted in the year 2016, the nature of the re-verification, the report submitted pursuant to such verification and the manner in which the verification was conducted have not been disclosed. If any verification was conducted and a report was submitted by the Verifying Officer, the relevant facts and the conclusion of such report ought to have been mentioned in the impugned order. The impugned order, however, does not disclose these details.

In Smt. Asha Mishra (supra), the restriction contained in the earlier O.M./Circular limiting consideration of a candidate for compassionate appointment to three occasions was declared ultra vires. It appears that, pursuant to the directions of the Hon’ble High Court of Allahabad in the said case, the respondents withdrew the aforesaid restriction. In such circumstances, the claim of the applicant could not have been rejected merely on the ground that it had earlier been considered on three occasions. However, this does not mean that compassionate appointment can be claimed as a matter of right after an indefinite period.

The relevant question is whether the competent authority has examined, in accordance with the applicable rules and guidelines, whether the financial condition of the deceased employee’s family still warrants compassionate appointment. If the financial hardship continues, the case is required to be considered on its merits in accordance with the applicable rules and instructions. A similar issue was considered by this Tribunal in Radhika Devi (supra), wherein the O.A. was allowed with a direction to the competent authority to reconsider the case in accordance with the applicable guidelines.

So far as the submissions made on behalf of the respondents are concerned, there is no dispute that compassionate appointment is not a vested right. At the same time, the claim cannot be rejected without examining it in accordance with the applicable rules, Government instructions and departmental guidelines.

In the present case, before passing any order on the representation of the applicant, the respondents ought to have properly examined the financial condition of the deceased employee’s family and recorded the relevant reasons for arriving at the conclusion that the case was not fit for reconsideration. If any enquiry was conducted by the competent authority or by an Enquiry Officer, the relevant findings of such enquiry ought to have been considered and reflected in the impugned order. The impugned order does not contain any such material. Thus, it is cryptic and does not disclose proper reasons for rejection of the applicant’s claim. Accordingly, the impugned order dated 05.01.2022 cannot be sustained and is liable to be quashed.

In view of the above discussion, the Original Application is allowed and the impugned order dated 05.01.2022 is hereby quashed. The respondents are directed to reconsider the claim of the applicant for compassionate appointment in the next meeting of the competent Circle Relaxation Committee/Departmental Screening Committee, strictly in accordance with the applicable Rules and Government instructions. While reconsidering the case, the respondents shall prepare and place on record a detailed merit-point chart/evaluation sheet showing the marks awarded to the applicant under each prescribed parameter, including family income, terminal benefits, number of dependents, liabilities, movable and immovable assets, educational qualification, remaining service of the deceased employee and such other relevant factors as prescribed under the applicable evaluation scheme. If, upon such fresh evaluation, the applicant falls within the zone of consideration on the basis of the merit-point assessment and availability of vacancies, his case shall be considered for compassionate appointment strictly in accordance with the applicable Rules, Government instructions and departmental guidelines. The decision taken by the Committee shall be communicated to the applicant forthwith. There shall be no order as to costs. All pending Misc. Applications, if any, also stand disposed of.