Abdul Hameed Khan P. v. Administrator, Union Territory of Lakshadweep & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 18TH DAY OF JULY 2016/27TH ASHADHA, 1938 OP (CAT).No. 59 of 2016 (Z) ---------------------------AGAINST THE ORDER/JUDGMENT IN OA 181/00018/14 & ORDER DTD.17.8.2015 IN REVIEW APPLICATION No.181/00001/2015 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH ## PETITIONER :APPLICANT : -------------------- ABDUL HAMEED KHAN.P., S/O.LATE SYED ALI.T.K., PANDAL HOUSE, KADMAT ISLAND, U.T. OF LAKSHADWEEP. BY ADVS.SRI.M.P.KRISHNAN NAIR SMT.RAJESWARI KRISHNAN SMT.SEEMA KRISHNAN RESPONDENTS : RESPONDENTS :- -------------------------- 1. THE ADMINISTRATOR, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI-682 555. 2. THE SECRETARY (POWER), DEPARTMENT OF ELECTRICITY, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI-682 555. 3. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI - 110 011. R3 BY ADV. SRI.K.SHRI HARI RAO, CGC R1-R2 BY ADV. SRI.S.RADHAKRISHNAN, SC, LAKSHADWEEP ADMN BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 18-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 59 of 2016 (Z) ## APPENDIX PETITIONER'S EXHIBITS :- EXT.P1 : COPY OF THE O.A.No.181/00018/14 FILED BY THE PETITIONER ON 20.1.2014. EXT.P2 : COPY OF THE INTERIM ORDER DTD.30.7.2014 PASSED BY THE TRIBUNAL IN OA.181/00018/14. EXT.P3 : COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 1 AND 2 ON 6.8.2014. EXT.P4 : COPY OF THE REJOINDER FILED BY THE PETITIONER ON 8.3.2015. EXT.P5 : COPY OF THE MEMO DTD.3.6.2015 WITH RULES AND REGULATIONS OF COMPASSIONATE APPOINTMENT. EXT.P6 : COPY OF THE ORDER DTD.26.6.2015 IN OA.181/00018/2014 OF THE TRIBUNAL. EXT.P7 : COPY OF THE REVIEW APPLICATION FILED BY THE PETITIONER ON 29.07.2015. EXT.P8 : COPY OF THE ORDER DTD.17.8.2015 IN R.A.No.181/00001/2015. RESPONDENTS' EXHIBITS :- NIL. True copy P.A to Judge ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. --------------------------------------O.P.(CAT)No.59 of 2016** **-----------------------------------------Dated this the 18[th] day of July, 2016** ## **JUDGMENT** ## Anil K.Narendran, J. The petitioner is the applicant in O.A.No.18/2014 on the file of the Central Administrative Tribunal, Ernakulam Bench. He has filed this Original Petition challenging Ext.P6 order of the Tribunal dated 26.6.2015 in O.A.No.18/2014 and also Ext.P8 order dated 17.8.2015 in R.P.No.1/2015. 2. The petitioner has approached the Tribunal in O.A.No.18/2014 seeking for an order to set aside Annexures A23 and A25 letters; to declare that Annexures A23 and A25 letters are issued in violation of Annexure A21 order of the Tribunal; to declare that is entitled to get compassionate appointment under dying-in-harness scheme of the Government of India applicable to the Union Territory of Lakshadweep due to untimely death of his father; and to direct the respondents to appoint him to a suitable post considering his qualification and experience under the aforesaid Scheme. 2 O.P.(CAT)No.59 of 2016 3. Before the Tribunal the reliefs sought for in the O.A. were opposed by the respondents by filing Ext.P3 reply statement. The applicant has also filed Ext.P4 rejoinder. 4. After considering the rival contentions, the Tribunal by Ext.P6 order dated 26.6.2015 dismissed the O.A. holding that on the basis of the materials on record there appears to be no need for immediate assistance to the family of the deceased Government servant in order to relieve it from a penurious condition. Therefore, interference was declined and the O.A. was dismissed. 5. Against Ext.P6 order of the Tribunal the applicant filed R.A.No.1/2015, contending that there is error apparent on the face of record warranting interference, in exercise of the jurisdiction under Section 23(3)(f) of the Administrative Tribunals Act, 1985. The said Review Application ended in dismissal by Ext.P8 order of the Tribunal. Feeling aggrieved by Exts.P6 and P8 orders passed by the Tribunal, the petitioner is before this Court in this Original Petition. 3 O.P.(CAT)No.59 of 2016 6. We heard the arguments of the learned counsel for the petitioner and also the learned Standing Counsel for Lakshadweep Administration, representing the respondents. 7. The sole issue that arises for consideration in this Original Petition is as to whether any interference with Exts.P6 and P8 orders passed by the Tribunal is warranted in exercise of the supervisory jurisdiction exercised by this Court under Article 227 of the Constitution of India. 8. The pleading and materials on record would show that, he applicant's father died on 10.12.2002, while working as Junior Engineer in the Electrical Department of Union Territory of Lakshadweep. The applicant, a native of Kadmat Island, who has passed SSLC in March 1991 and secured National Trade Certificate in the trade of Electrician in July 1994, submitted Annexure A10 application dated 29.7.2003. 9. After various representations/communications, the applicant has approached the Tribunal in O.A.No.450/2011 seeking for an order directing the respondents to give him suitable appointment on compassionate grounds. In the said O.A. 4 O.P.(CAT)No.59 of 2016 the Tribunal passed Annexure A20 interim order dated 20.3.2012, directing the respondents to furnish the details as to the number of posts filled up on compassionate grounds. Finally the said O.A. was disposed of by Annexure A21 order dated 13.8.2012, directing the respondents to consider the case of the applicant keeping in view the fact that his sister is married and living separately and is over aged and if there is justification in regard to grant of compassionate appointment, but for the fact of an earning member being there. In Annexure A21 order the Tribunal has also made it clear that it has made no observation on the merits of the case. 10. Pursuant to Annexure A21 order of the Tribunal, the 1[st] respondent re-examined the matter and informed the 3[rd] respondent vide Annexure A25 letter dated 18.3.2013 (wrongly typed as 18.3.2012) that, considering the financial position of the family of the deceased and all other aspects including the fact that all family members, except the wife of the deceased Government servant are employees in one way or other, the applicant deserves no consideration for appointment on O.P.(CAT)No.59 of 2016 5 compassionate grounds and therefore, appropriate decision may be taken rejecting his claim for compassionate appointment and the order may be communicated to him. The employment particulars of the family members of the deceased Government servant and the present financial position of the family mentioned in Annexure A25 letter reads thus:- |Sl.No.|Name|Occupation|Monthly<br>income| |---|---|---|---| |1|Smt.Subaida|House wife|₹6,735/-| |2|Shri.Abdul Hameed<br>Khan (Applicant)|Electrician<br>(Contract),<br>SPORTS,<br>Kadmat|₹8,400/-| |3|Smt.Hameedabi|Primary School<br>Teacher|₹41,318/-| |4|Shri.Hidayathulla|Trained<br>Graduate<br>Teacher|₹46,000/-| |5|Shri.Asarudeen|Post Graduate<br>Teacher<br>(Contract)|₹18,000/-| Thus, the financial position of the family at present is as follows: |(a)|Family pension|-|₹6,735/-| |---|---|---|---| |(b)|DCRG|-|₹1,80,716/-| |(c)|GPF Balance|-|₹55,000/-| |(d)|Income from Movable &<br>Immovable property|-|₹14,000/-| |(e)|C.G.E.Insurance amount|-|₹42,000/-| |(f)|Income of earning members|-|₹1,13,718/-| O.P.(CAT)No.59 of 2016 6 11. Annexure A25 letter was followed by Annexure A23 letter dated 13.5.2013 of the 3[rd] respondent addressed to the 1[st] respondent, with copy to the applicant, informing that, considering the financial position of the family of the deceased Government Servant and all other aspects including the employment of the family members, the case of the applicant for appointment on compassionate grounds deserves no merit and therefore the same is not acceded to. 12. Vide Department of Personnel & Training OM No. 14014/6/1994-Estt(D) dated 9.10.1998, 'Scheme for Compassionate Appointment under Central Government' was formulated, the objective of which is to grant appointment on compassionate grounds to a dependent family member of a Government servant who died-in-harness or who retired on medical grounds before attaining the age of 55 years (57 years for erstwhile Group 'D' employees), thereby leaving the family in penury and without any means of sustainable livelihood, so as to provide relief to the family of the Government servant concerned 7 O.P.(CAT)No.59 of 2016 from financial destitution and to help it to get over the emergency. The said Scheme was amended from time to time and all the instructions on compassionate appointments have been consolidated vide Department of Personnel & Training OM No.14014/02/2012-Estt(D) dated 16.1.2013. 13. As per Para.5 of the Scheme, which deals with eligibility, the family of the deceased or medically retired Government servant should be indigent and deserves immediate assistance for relief from financial destitution; and further, the applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules. Para.7 of the Scheme deals with determination/availability of vacancies. As per clause (a) to Para.7, appointment on compassionate grounds should be made only on regular basis and that too only if regular vacancies meant for that purpose are available. As per clause (b) to Para.7, compassionate appointments can be made upto a maximum of 5% of vacancies falling under direct recruitment quota in any Group 'C' post. 8 O.P.(CAT)No.59 of 2016 14. Going by clause (e) to Para.7 of the Scheme, the Committee constituted for considering a request for appointment on compassionate grounds should limit its recommendation to appointment only in a really deserving case and only if vacancy meant for appointment on compassionate grounds will be available within a year in the concerned administrative Ministry/Department/office, that too within the ceiling of 5% of vacancies falling under direct recruitment quota in Group 'C' posts. 15. Para.11 of the Scheme deals with cases where there is an earning member in the family of the deceased or medically retired Government servant. Clause (a) of Para.11 provides that, in deserving cases even where there is already an earning member in the family, a dependent family member may be considered for compassionate appointment with prior approval of the Secretary of the Department/Ministry concerned who, before approving such appointment, will satisfy himself that grant of compassionate appointment is justified having regard to number of dependents, assets and liabilities left by the Government O.P.(CAT)No.59 of 2016 9 servant, income of the earning member as also his liabilities, including the fact that the earning member is residing with the family of the Government servant and whether he should not be a source of support to other members of the family. 16. In **Umesh Kumar Nagpal v. State of Haryana (1994 (4) SCC 138)** the Apex Court held that, only dependents of an employee dying-in-harness leaving his family in penury and without any means of livelihood can be appointed on compassionate grounds. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family of the deceased from financial destitution and to help it get over the emergency. In the said decision, the Apex Court has stated in categorical terms that, offering compassionate appointment as a matter of course irrespective of the financial condition of the family of the deceased or medically retired Government servant is legally impermissible and that, compassionate appointment cannot be granted after the lapse of a reasonable period and it is not a vested right which can be exercised at any time in future. 10 O.P.(CAT)No.59 of 2016 17. In the instant case, the Tribunal, based on the materials on record, found that the wife of the deceased Government servant (mother of the applicant) is in receipt of family pension amounting to 6,735/- per month. The applicant₹ himself is working on contract basis as Electrician in the Society for Promotion of Nature, Tourism and Sports (SPORTS), Kadmat and earning 8,400/- per month. In addition to this, his sister₹ Smt.Hameedabi is earning 41,318/- per month as Primary₹ School Teacher, his brother Shri.Hidayathulla is earning ₹46,000/- per month as Trained Graduate Teacher and another brother Shri.Asarudeen is earning 18,000/- per month as Post₹ Graduate Teacher on contract basis. In addition to this, the mother of the applicant has received a total sum of 2,84,451/-₹ towards DCRG, GPF and Group Insurance. When, both the widow of the deceased Government servant and the applicant have sufficient income, they cannot be stated to be in indigent circumstances. The very fact that the family has been able to manage for the last more than 13 years prima facie shows that it has some dependable means of subsistence and not living in 11 O.P.(CAT)No.59 of 2016 penury. Further, when all the dependants of the deceased Government servant, except his widow, are employed in one way or other, this is not a deserving case to invoke the provisions under clause (a) of Para.11 of the Scheme. 18. As we have already noticed, as per the Scheme compassionate appointments can be made only upto a maximum of 5% of vacancies falling under direct recruitment quota in any Group 'C' post and further, the Committee constituted for considering such requests should limit its recommendation to appointment only in a really deserving case and only if vacancy meant for appointment on compassionate grounds will be available within a year in the concerned administrative Ministry/Department/office, within the ceiling of 5% of vacancies referred to above. The specific stand taken by the respondents in their reply statement is that, the request for compassionate appointment made by the applicant was turned down taking note of the financial position of the family of the deceased Government servant, which was found not deserving. The Committee recommended more deserving cases than the O.P.(CAT)No.59 of 2016 12 applicant for appointment, against the available vacancies. 19. Based on the pleadings and materials on record, the Tribunal arrived at a conclusion that, there appears to be no need for immediate assistance to the family of the deceased Government servant in order to relieve it from any penurious condition. Accordingly, the Tribunal dismissed the O.A. by Ext.P7 order. In the absence an error apparent on the face of record warranting interference on Ext.P7 order, the Tribunal rejected R.A.No.1/2015, vide Ext.P8 order. We find absolutely no grounds to interfere with Exts.P7 and P8 orders of the Tribunal. In the result, this Original Petition fails and the same is accordingly dismissed. No order as to costs. Sd/- **P.R. RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** skj True copy P.A to Judge