Nirmala Saha and Another vs Union of India and Others

Pratap Kumar Ray, J.—Heard the learned Advocates appearing for the parties.

Assailing the order dated 6th December, 2007 passed in O.A. No. 936 of 2006 by the Central Administrative Tribunal, Calcutta Bench, this writ, application has been filed.

By the impugned decision, the learned Tribunal below rejected the Original Application by confirming the decision passed by the authorities of Metal and Steel Factory, Ichapore. The impugned order before the learned Tribunal reads such:-

No. 1630/3/LB

Govt, of India,

Ministry of Defence,

Indian Ordnance Factory

Metal and Steel Factory,

Ishapore,

Dated 7.6.2006.

From: The General Manger,

To,

Smt. Nirmala Saha

Wife of Late Shri Nitya Nanda Saha,

Ex-OCC/143

02, Bankim Nagar

P.O. Alipur Pin-743128, North 24-Parganas.

Sub: Employment assistance on compassionate ground.

Ref. Your application dated 1.2.2002.

With reference to your application for employment assistance on compassionate ground in respect of Shri Napen Saha, son of Late Nitya Nanda Saha of this factory, it is intimated that the case has been considered alongwith others on the basis of comparative merit points as assessed by a duty constituted Board of Officers (B.O.O.). But, it is regretted that due to non-availability of vacancies meant for the purpose no employment assistance could be offered by this factory.

Further, as per the policy guideline of Ordnance Factory Board/Ministry of Defence, the maximum time, a person''s name can be kept under consideration for offering compassionate appointment, is 3 (Three) years from the date of death/MBD/Missing and if compassionate appointment cannot be offered during this period, the case is to be finally closed. In view of the above, it is regretted to intimate that your case has been treated as close and the same will not be considered again. Kindly note that no further communication will be made in this regard".

The order of the learned Tribunal reads such:-

"6.12.2007.-The applicant has appointed this Tribunal for issuing direction to the respondents to cancel the letter dated 7.6.2006 (page 21 of the OA) S in which it was stated by the respondent that the representation of the applicant for a job on compassionate ground cannot be approved after consideration. The applicant made a representation for providing him a job on compassionate ground after the death of his father in 2001. The respondents duly considered the representation and by their letter dated 24.7.2004 (Annexure A/4) they intimated the applicant that after taking into consideration the different parameters he was awarded 41 points only on the basis of 100 points scheme prescribed by the concerned department. It was intimated that the score will be taken into consideration for comparative assessment of his merits w.r.t. various other candidates, by the selection committee for extending the benefit of compassionate appointment. The-applicant was also advised to make an appeal to the appropriate authority if he feels aggrieved by the communication. The applicant made representation against this communication. Further by order of the respondents dated 16.10.2004 (Annexure A/6) it was intimated that the merit of the applicant''s case was assessed by allotting points of various attributes in terms of the direction of the Ministry of Defence. The case was considered along with others against the vacancies available during the year 2004 and appointment could be made only to the applicant with merits higher than that of the applicant. The applicant continued to make representation against the decision and he received a further communication from the respondents on 7.6.2006 (Annexure A/9) which is as follows:-

With reference to your application for employment assistant on compassionate ground in respect of Shri Napen Saha, Son of Late Shri Nitya Nanda Saha of this factory, it is intimated that the case has been considered along with others on the basis of comparative merit points as assessed by a duly constituted Board of Officers (B.O.O.). But, it is regretted that due to no-availability of vacancies meant for the purpose no employment assistance could be offered by this factory.

Further, as per the policy guideline of Ordnance Factory Board /Ministry of Defence, the maximum time, a person''s name can be kept under consideration for offering compassionate appointment is 3 (Three) years from the date of death/MBO/Missing and if compassionate appointment cannot be offered during this period, the case is to be finally closed.

In view of the above, it is regretted to intimate that your case has been treated as closed and the same will not be considered against. Kindly note that no further communication will be made in this regard.

It is this order of 7.6.2006 which has been impugned by the applicant in this OA. The ground stated by the applicant can be summed up as follows:

(1) The letter dated 7.6.2006 indicates that the representation of the applicant was considered in terms of the letter and guidelines of 2003 which afforded three opportunities for consideration. The applicant made a representation prior to the circular of 2003 and therefore deserves to be considered in terms of the previous circular.

(2) He was not satisfied with the marks given by the respondents after considering the various attributes. He was also at a loss to see that he has been assigned different marks in different years of consideration. In one occasion he was awarded 41 marks. In another he was offered as low as 34. The applicant does no find any plausible explanation for such variation.

(3) The applicant alleges that the pecuniary circumstances of the applicant''s family was not duly and adequately considered by the respondents. If they had done so they have definitely found his case deserving.

The learned Counsel for the applicant at the time of hearing also stated that it was open to the Tribunal to look into such discrepancies as pointed out and also ensure that the pecuniary circumstances of the applicant''s family was justify and fairly considered by the respondents.

The respondents have countered the allegation in their reply. The main arguments against the contention of the applicant has been stated in the paras from 3.1 to 3.8.

3.1. Shri Nityananda Saha, T. No. OCC/143, an employee of this factory, died on 28.7.2001 during service period after rendering 37 years service at the age of 59 years and 11 months. After the demise of Shri Saha, Smt. Nirmala Saha (the applicant No. 1 herein), wife of the deceased employee had submitted application dated 1.2.2002 with request to provide employment assistance to her fourth son Shri Nepal Saha on compassionate ground to maintain her family.

3.2. On receipt of the above mentioned application, letters were issued to Labour Office, Metal and Steel Factory, Ishapore and Civil Authority (i.e. O/C Jagatdal P.S.) for verification of legal heir and financial condition of the family vide communication No. 1630/3/LB both dated 9.2.2002. Another letter was issued to applicant No. 1 on 9.2.2002 asking for forwarding declaration pertaining to movable and immovable property of the deceased/applicants.

3.3. MSF authority received the applicant''s declaration regarding movable and immovable property on 7.3.2002 and verification reports from DI. WC(C) MSF, Ishapore and Civil Authority on 18.3.2002 and 4.5.2002 respectively.

3.4. The declaration dated 7.3.2002 advanced by applicant No. 1 and verification reports dated 18.3.2002 and 7.3.4.5.02 (Sent by DI. WC.MSF, Ishapore and O/C Jagatdal P.S.) were placed before the duly constituted Board of Officers (in short B.O.O) in the year 2002 for assessment of relative merit points for recommendation/decision regarding compassionate employment of applicant No. 2, and the Board taking into consideration of all parameters had awarded 41 points only based on a prescribed 100 point scale, but the case of the applicant was not considered in the year 2002 due to non-availability of vacancies available for the purpose of compassionate appointment which was only 5% of the total vacancies to be filed up through Direct Recruitment as per DOPT OM dated 9.10.1998.

3.5. It may be pointed out that in the year 2003 there were no vacancies available for purpose of compassionate appointment which was only 5% of the total vacancies to be filled up through Direct Recruitment as per DOPT OM dated 9.10.1998.

3.6. The case was farther placed before the B.O.O. in the year 2004 for consideration afresh along with the fresh individuals when the B.O.O. taking into consideration the revised procedure for assessment of relative merit points had awarded 41 points based on a prescribed 100 point scale. The above 41 points secured by the applicant was beyond the zone of consideration for offering appointment on compassionate ground against available 5% vacant posts meant for the purpose in the year 2004. It may be pointed out that the minimum cut off mark followed by the factory in the year 2004 for consideration of cases for appointment on compassionate ground against available 5% vacant posts meant for the purpose was 66, and as such employment assistance to applicant No. 2 could not be given in the year 2004. Accordingly, regret letter issued to applicant No. 1 on 24.7.2004 mentioning therein the fact behind issuance of the regret letter.

3.7. The case was further placed before the B.O.O. in the year, 2005 for consideration afresh along with the fresh individuals when the B.O.O. taking into consideration the revised procedure for assessment of relative merit points had awarded 40 points based on a prescribed 100 point scale but the case of the applicant was no considered in the year 2005 due to non-availability of vacancies available for the purpose of compassionate appointment which was only 5% of the total vacancies to be filled up through direct recruitment as per DOPT OM dated 9.10.1998.

The case was further placed before the B.O.O. in the year 2006 for consideration afresh along with fresh individuals when the B.O.O. taking into consideration the revised procedure for assessment of relative merit points had awarded 34 points out of 100 point scale.

However, after assessment of the revised score-sheet for the year 2006 relating to the applicant, it came to the notice of the authority that the case of the applicant was taken into consideration inadvertently FOR A TOTAL 5 (FIVE) YEARS IN PLACE of 3 (THREE) CONSECUTIVE YEARS from the year of the death of the Government servant and accordingly, final regret letter dated 7.6.2006 (Annexure A/9 to the OA (was issued to the, applicant rejecting the applicant''s application dated 1.2.2002 (Annexure A/2 to the OA) for consideration for compassionate appointment having considered more than 3 (three) consecutive years.

Learned Counsel for the respondents pointed my attention to these paras and stated that the case of the applicant was considered five times whereas according to the latest circular of 2003 the maximum number of consideration should not go beyond three. She has stated that the applicant is finding fault with the impugned letter by saying that they have decided his case in terms of the circular of 2003 and this is legally not correct. They should have considered the representation in the light of the previous circular of 1999. At this stage one question was asked to the learned Counsel for the applicant, if the representation was considered in terms of the circular of 1999 whether it would have offered more chances to the application for consideration and whether it would have increased the prospect of his appointment on compassionate ground. Although the learned Counsel for the applicant could not reply to this question in the positive, he however, stated that legally and technically it was wrong on the part of the respondents to consider the representation in terms of the circular of 2003.

Learned Counsel for the respondents pointed to decision of this Tribunal in a similar case OA 83/2005. The operative portion of which is at para 6:

Compassionate appointment scheme is a welfare measure of the Govt. No vested right exists for any applicant to enforce. In other words, an applicant is only entitled for consideration and in case his case is most indigent among the applicants under consideration, he could be given appointment. As the respondents have considered the case of the applicant for three years, but he could not be found to be the most deserving candidate, he could not be appointed. As the applicant has not brought any material before me to show that the claim of the respondents that it was not most deserving case, was borne on a wrong premise nothing survives in OA for me to adjudicate. Accordingly, the OA is disposed of as without merit. No costs.

By drawing my attention to this decision she says that the applicant has not more chances for consideration that is permitted in terms of the circular either of 1999 or 2003. What more consideration he expects from the respondents? Not only that, be referring to the decision of M.T. Lathees reported in 2006 SCC (L&S) 1646. She further submits that this decision of the Hon''ble Supreme Court restricts this scope of judicial review of this Tribunal. It clearly says that the job of the Tribunal /Court is to ensure that the guidelines laid down and procedure prescribed are followed meticulously and there is no deviation therefrom. However, the Court or the Tribunal does not have any jurisdiction over assessment of relative merit in terms of the various parameters which are laid down by the various Ministry. They are obviously the job of executive and not the job of the Tribunal.

Learned Counsel for the applicant also cited the judgement from 2007 SCC (L&S) 585. According to this judgement the request for compassionate appointment should be considered in terms of the circular which was not in vogue at the time of the applicant. The competent authority has no right to consider the request which is pending before them according to the circular which was in existence at the time of the applicant. By referring to this decision of the Apex Court, learned Counsel for the applicant says that the respondents have committed a great error by considering the case in accordance with the circular of 2003 which was not in existence at the time of his application and on this very: ground the impugned letter deserves to be quashed.

I have applied my mind to the arguments put forth by the learned Counsel for the parties. I have gone through the pleadings exchanged and various records contained therein. The main argument of the applicant seems to be that the respondents committed an error in law by deciding his case in the light of the circular of 2003 and as it was clearly stated in the impugned letter, on this selfsame issue, according to the applicant it deserves to be quashed. As already stated in the above paras what the Tribunal has to see is whether the circular of 2003 affords less opportunity for consideration as compared to the previous circular. If the point which the learned Counsel for the applicant making is that he should have been considered according to the parameters, laid down in 1999 then he gets only one opportunity for consideration. In this case he has been considered five times which is also in excess of the permissible limit of circular of 2003. Therefore I am of the view that the competent authority has not acted in a manner which can be stated to be mala fide. It has not caused prejudice to the interest of the applicant in any way. As a matter of fact he has been given the benefit of five consideration which is beyond the scope of even the latest circular which is much more liberalised compared to the previous one.

On this consideration I do not find any merit in this OA and the same is dismissed. No order as to costs.

Having regard to the impugned order before the learned Tribunal in the Original Application, it appears that the concerned department, the respondents herein, refused the consideration of the application for appointment on compassionate ground due to death of the concerned employee, who was the father of the writ petitioner No. 2, on the ground that it was considered as per policy guideline of Ordnance Factory Board/Ministry of Defence more than the maximum time of three years from the date of death of the concerned employee.

Before the learned Tribunal below, the respondents, Ordnance Factory took the point by filing a rejoinder of Original Application, the detail of which is quoted by the learned Tribunal below in paragraph 3 of the impugned order of this application to this effect that after death of the employee in July, 2001, in the year 2002 as there was no vacancy, the application for appointment was not considered. Similar situations were in 2003 and 2005. It is, further asserted therein that in the year 2004 though the application was considered, but the candidate could not succeed to secure the marks on merit and, as such was not eligible for appointment. In the year 2006, the consideration issue has been replied in the manner that relative merit points was in the lower side and his case was earlier considered for a total period of five years though as per policy decision it was required to be considered for three consecutive years only.

Learned Advocate for the writ petitioners submits that the learned Tribunal below failed to consider the issue in his proper prospective. It is contended that as per the rejoinder filed by the respondents, Ordnance Factory, it was an admitted fact that the case of the writ petitioner No. 2 could not be considered due to lack of vacancy in the years 2002, 2003 and 2005. It is contended that if there was no vacancy, it cannot be said as consideration of the application for giving appointment on merit in terms of the norms as prescribed by them.

Having regard to such, it is contended that minimum three years period for consideration of the application in terms of policy decision of the Ordnance Factory as set up by their Board also was not fulfilled. Learned Advocate for the respondents, Union of India and other respondents submit that in terms of policy decision, the case of the writ petitioner was required to be considered having regard to the circular letter of compassionate appointment issued on 3rd December, 1999 as the cause of action arose in July, 2001 when me employee breathed last in view of existence of such circular letter at the relevant time, which, however, subsequently was modified by providing consideration of the application for three consecutive occasions in terms of scheme of compassionate appointment issued on 9th March, 2001. It is, the contention of the writ petitioners that the circular letter of 1999 has no applicability, but the circular letter of 2001 which was issued in the month of March of that year would be applicable to consider the application filed by the writ petitioner No. 2 as his father breathed last in July, 2001 when the cause of action arose for applicability of the said scheme for compassionate appointment.

Having regard to the rival contentions of the parties and going through the judgement passed by the learned Tribunal, only point for our consideration is whether the impugned decision of the Ordnance Factory could be a justified decision in terms of the scheme for compassionate appointment as relied upon by the parties.

Learned Tribunal and the respondents, Ordnance Factory both relied upon the scheme for compassionate appointment as issued in the year, 2001. The relevant portions of time limit as mentioned in the said scheme reads such:-

The weightage fixed, above is to be strictly allowed for assessing comparative merit keeping in view the instructions issued by the DOP&T from time to time. Further all applications may be acknowledged immediately on receipt and decision of the Board of Officers (BOO) be communicated to the applicants after every sitting. The system of WAITING LISTS have already been discarded (REF. DOP&T OMF No., 14014/23/09 ESTT (D) dated 3.12.1993). The candidates are required to apply only once and the application if not recommended in the first BOO for want of vacancy is to be considered afresh along with the fresh applicants by the BOO on three occasions consecutively and ensure that the final decision is communicated to the applicant by a detailed speaking order.

The circular letter as relied upon by the learned Advocate for the respondents being the circular letter of the year 1999. On a bare reading the same, it has no applicability in the instant case not only for the reason that a scheme was introduced in March, 2001 after the year 1991, but for the reason that the contention of the said circular letter of 1991 is not with reference to the time limit for consideration of the application as has been urged by the learned Advocate for the respondents herein. The circular letter of 1999 annexed at page 21 of the affidavit-in-opposition reads such:-

G.L. Dept. of Per & Trg. O.M. No. 14014/23/99-Estt. (D) dated 3.12.1999.

Compassionate appointment, only in a really deserving case and only if vacancy meant for it will be available within a year.

The undersigned is directed to refer to the Department of Personnel and Training O.M. No. 14014/6/94-Estt. (D), dated 9.10.1998 (vide SI. No. 229 of Swamys Annual, 1998) and to say that the question of prescribing a time/limit for making appointment on compassionate grounds has received due consideration taking into account the ceiling of 5% of vacancies falling under direct recruitment quota in any Group ''C'' or T)'' post prescribed in this regard in paragraph 7 (b) with and the ruling of the Supreme Court that appointment on, compassionate grounds can be made only if vacancies are available for the purpose mentioned in Para 17 (d) ibid.

Accordingly, it has been decided that the Committee prescribed in Para 12 ibid for considering a request for appointment on compassionate grounds should take into account the position regarding availability of vacancy for such appointment and it should recommend appointment on compassionate grounds only in a really deserving case and only if vacancy meant for appointment on compassionate grounds will be available within a year, that too within the ceiling of 5% mentioned above. This would ensure grant of compassionate appointment within a year.

In respect of other really deserving cases, the Committee should only recommend taking up the matter with other Ministries/Departments/Offices of the Government of India to consider those cases for appointment there as provided in para 7(f) ibid.

The instructions contained in the OM, dated 9.12.1998 stand modified to the extent mentioned above. The above decision may be brought to the notice of all concerned for information, guidance and necessary action.

The said provision has been incorporated in the scheme of the year 2001 also in paragraph 5 which read such:-

Moreover it has been decided that the Committee (BOO) for considering a request for appointment on compassionate grounds should take into account the position regarding availability of vacancy for such appointment and it should recommend appointment on compassionate grounds only in a really deserving case and only 1 vacancy meant for appointment on compassionate grounds will be available with a year, that too within the ceiling of 5% meant for the purpose. This would ensure grant of compassionate appointment within a year.

On a bare reading of the circular letter of 1999, it appears that the said circular relates to the procedure for recommending any appointment under compassionate ground on the condition of fulfilment of the stipulated conditions thereon, namely, availability of immediate vacancy by indicating the span of availability of such vacancy as one year. It does not mean that consideration of application is contoured with a limitation of one year period only. As already observed that the cause of action arose in July, 2001 for filing application by the petitioner No. 2, as such the scheme of such compassionate appointment issued in March, 2001 will be applicable in this field. The relevant portion of consideration of application and its mode is already quoted wherefrom it appears that the candidates are required to apply only once and the application if is not recommended in the first Board of Officers for want of vacancy, it to be considered on three occasions consecutively which naturally means that consideration of the application is required to be considered if there is any vacancy in a particular time as in terms of the said scheme system of maintaining the waiting list was abolished. We fail to understand the logic as advanced by the learned Tribunal below as well as the argument advanced by the learned Advocate for the respondents that even if there is no vacancy, it would be deemed that in a particular year the case was considered. There is no substance in such reasoning. It appears from the affidavit filed before the learned Tribunal as already referred to that for the years 2002, 2003 and 2005, there were no vacancies. Hence, as there were no, vacancies, there was no scope to consider the application of any candidate. It is a settled legal principle of Service Jurisprudence that appointment is made with reference to a post and until and unless any post is vacant, there is no question of consideration of the application for appointment either it may be compassionate appointment or it may be a regular appointment. For consideration of the application for appointment sine qua non is the existence of a vacant post. If, there is, no vacant post, mere reading of the application in a particular year by placing the same in the Board Meeting does not mean that the application has been considered.

In view of such, we are of the strong view that the application of the writ petitioner No. 2 could not be said as considered in the years 2002, 2003 and 2005 when there were no vacancies. Furthermore, from the affidavit it appears that only in the year 2004 the writ petitioner''s application was considered with reference to the vacancy, but he failed to secure minimum eligibility marks as fixed by the concerned authorities. In the year, 2006 again it was considered but in the affidavit as filed before the learned Tribunal no where it was mentioned that in the year 2006 with reference to any vacancy this application was considered. Only it appears from the impugned decision of the Ordnance Factory as assailed in the Original Application that the application for employment was considered on the basis of comparative merit but due to non-availability of the vacancy in the year, 2006, the application was not considered. This point has not been looked into by the Tribunal. Hence, having regard to our findings above only once the application for compassionate appointment was considered with reference to the vacancy as was existing in the year, 2004, but the petitioner No. 2 failed to secure the eligibility marks.

Having regard to the scheme of 2001, we are of the view that three consecutive occasions as the application for appointment is required to be considered, it means that on the fulfilment of the condition of availability of vacancy, such condition to be satisfied. Such meaning is clear from the scheme itself. Otherwise if the argument of the learned Advocate for the respondents is considered namely consideration of the application for three consecutive occasions means placing of the application on three consecutive years from the date of filing application irrespective of the fact that there were no vacancies, then the situation would be nothing but an arbitrary situation. The concerned person by this way would be deprived of to have the benefit under the scheme. Hence, learned Tribunal failed to appreciate and consider the meaning of the scheme in its true and proper perspective.

Having regard to the aforesaid findings and observations, we are of the view that the judgement of the Tribunal is not legally sustainable and the same is accordingly set aside and quashed. The impugned decision rejecting further consideration as indicated in the letter dated 7th June, 2006 is also set aside and quashed. The respondents Nos. 2 and 3 are directed to consider the application of the writ petitioner No. 2. in accordance with the scheme aforesaid for further two consecutive occasions when there will be existence of vacancies and to decide his case on merit and thereby to communicate the decision within two weeks from the date of taking such decision.

The writ application accordingly succeeds.

Let xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously.

MRINAL KANTI SINHA, J

I agree.