Ajay Joseph Chacko v Union of India and Indian Audit and Accounts Department

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 23RD DAY OF MARCH 2017/2ND CHAITHRA, 1939 OP (CAT).No. 107 of 2015 (Z) ----------------------------AGAINST THE ORDER/JUDGMENT IN OA 295/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ## PETITIONER : ------------- AJAY JOSEPH CHACKO, NISHANTH, KOTTIYAM P.O., KOLLAM-691571. BY ADVS.SRI.A.JAYASANKAR SRI.C.V.MANUVILSAN SRI.MANU GOVIND ## RESPONDENTS : - ------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSION, NEW DELHI-110001. 2. INDIAN AUDIT AND ACCOUNTS DEPARTMENT, REPRESENTED BY THE PRINCIPAL ACCOUNTANT GENERAL (SOCIAL AND GENERAL SECTOR AUDIT), KERALA, THIRUVANANTHAPURAM-695001. R1,R2 BY ADV. SRI.M.RAJENDRA KUMAR, CGC R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R BY SRI.K.I.MAYANKUTTY MATHER, SC THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 23-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 107 of 2015 (Z) ## APPENDIX PETITIONER'S EXHIBITS:- EXT.P1 : COPY OF O.A.No.295/2013 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P2 : COPY OF THE REPLY STATEMENT WITH ANNEXURE. EXT.P3 : COPY OF THE ORDER DTD.28.01.2015 IN O.A.No.295/2013. True copy P.A. to Judge ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ. -----------------------------------------------------O.P.(CAT)No.107 of 2015** ## **-----------------------------------------------------Dated this the 23[rd] day of March, 2017** ## **JUDGMENT** ## **C.T.Ravikumar, J.** The petitioner herein was the applicant in O.A.No.295 of 2013 on the files of the Central Administrative Tribunal, Ernakulam Bench and the respondents herein were the respondents therein. The petitioner moved the said Original Application seeking quashment of Annexures-A4 and A5 and a direction to the 2[nd] respondent to extend employment assistance to him in terms of Annexure-A1 scheme. The Tribunal on consideration of the rival contentions dismissed the Original Application as per order dated 28.1.2015. It is in the said circumstances, the above Original Petition is filed. 2. The facts and circumstances that led to the filing of the Original Application that culminated in Ext.P3 order are as follows:- The petitioner's father Sri.D.Chacko was a Group-B officer in Indian Audit and Accounts Department. He died in harness after O.P.(CAT)No.107 of 2015 2 serving the department for more than 38 years, on 15.10.2009. At the time of his death the petitioner was studying for MBA in United Kingdom. After completing his course he returned home and thereafter applied for employment assistance on 11.10.2010. The said application was rejected. As per Annexure.A4 the petitioner was intimated about the rejection of his application for employment assistance by the competent authority. On its receipt the petitioner sought for copy of the decision whereby the competent authority rejected his request. Consequently, Annexure.A5 decision of the competent authority was communicated. The contention of the petitioner is that the grounds for rejection given in Annexure.A5 are absolutely unsustainable. According to the petitioner the fact that the family was given an amount of Rs.14,03,460/- towards terminal benefits under different heads ought not to have been taken as a ground for denying him employment assistance. The contention of the petitioner is that his father had two wives and therefore, on receipt of the terminal benefits a considerable portion of the O.P.(CAT)No.107 of 2015 3 same was given to the other wife and children of his father. In such circumstances, it is contended that the entire amount of the terminal benefits had not actually reached the family of deceased Chacko consisting himself and his mother. It is the further contention that the reason assigned in Annexure.A5 that more than Rs.25,000/- has been sanctioned as monthly pension also ought not to have been taken as a ground for rejection of his application for employment assistance. In short, the contention of the petitioner is that employment assistance ought not to have been denied to him citing such reasons. Per contra the learned counsel appearing for the respondents submitted that Annexures.A4 and A5 would reveal that all the relevant factors were duly considered by the competent authority before rejecting the claim of the petitioner for employment assistance. Essentially, the contention is that employment assistance is to be provided only to a family in penurious condition so as to enable the family to tide over the immediate financial crisis. The said succor is to be made available only to a family in financial O.P.(CAT)No.107 of 2015 4 destitution. The learned counsel further contended that the very fact that at the time of death of his father, the petitioner was abroad and pursued with his studies in MBA course there even after the death of his father would also indicate the financial condition of the family. Annexure-A3 would reveal that the Welfare Officer verified the financial situation of the family of the deceased employee consisting of the petitioner and his mother and found that the family owns 70 cents of land in Kottiyam. It was also reported thereunder that the mother of the petitioner/the widow of the deceased employee, was a teacher in an unaided school and she is drawing meagre monthly income from EPF. It is to such a financially sound family that the terminal benefits of more than Rs.14,00,000/- was granted, it is submitted. The petitioner's mother who is the widow is being granted family pension of Rs.25,318/-. In short, the learned counsel appearing for the respondents submitted that all those factors were duly considered by the Tribunal while dismissing the Original Application and since Ext.P3 order is not infected with O.P.(CAT)No.107 of 2015 5 any illegality no interference is called for. 3. We have heard the learned counsel for the petitioner and also the learned counsel appearing for the respondents. 4. There can be no dispute with respect to the position that employment assistance is to be provided only to a family in financial destitution owing to the sudden demise of the earning member of the family and the same cannot be treated as a method to give appointment to a member of the family of the deceased employee ignoring the purpose and object of the compassionate employment scheme. Evidently, the compassionate appointment is an exception to the method of recruitment to Public Service and it is to be noted that only 5% of the total number of posts available in the lower post where direct recruitment is the method of appointment is set apart for filling up by compassionate appointments. When only such a limited per centage of vacancies are earmarked for granting compassionate employment assistance the authorities competent are under a bounden duty to ensure that it is provided only to persons who O.P.(CAT)No.107 of 2015 6 are really deserving such employment assistance. This position is evident from a plethora of decisions on the said issue. 5. In the decision in **Umesh Kumar Nagpal Vs. State of Haryana & others** reported in **(1994 KHC 1178)** the Hon'ble Apex Court held that the sole object of granting compassionate employment is to enable the family of a deceased employee to tide over the immediate financial crisis. It was also held therein that the Government or the public authority concerned had to examine the financial condition of the family of the deceased and only on satisfaction that without employment assistance the family would not be able to meet the crisis to which it is put by the sudden demise of the employee a job is to be provided to the eligible member of the family. It is also to be noted that the Apex Court virtually deprecated the practice of providing employment assistance without giving due regard to the financial position of such a bereaved family. This is obvious from para.3 thereunder. It was held:- “Unmindful of this legal position, some Governments and public authorities have been O.P.(CAT)No.107 of 2015 7 offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV. That is legally impermissible.” The said position was restated in subsequent decisions, such as, in **Bharath Petroleum Corporation Ltd. & others Vs. T.Padmakumari Amma** reported in **(2007 (1) KHC 376)** , in **Santhosh Kumar Dubey v. State of U.P. and others** reported in **(2009 KHC 4656:2009 (6) SCC 481)** and in **Bhawani Prasad Sonkar Vs. Union of India** reported in **(2011:KHC 4262:2011 (4) SCC 209)** . In **Padmakumari Amma's** case (supra) the Apex Court held that compassionate appointment is not a matter of absolute right and it would necessarily depend upon the financial condition of the family on the death of the bread winner of the family. In **Santhosh Kumar's** case the Apex Court held that the compassionate appointment is not a bonanza or another source of recruitment so as to claim it as a matter of right and its purpose is to provide immediate financial assistance to the family O.P.(CAT)No.107 of 2015 8 who had lost his bread winner. In **Bhawani Prasad Sonkar's** case the Apex Court held that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee’s family to tide over the sudden financial crisis and could not be claimed as a matter of right. Bearing in mind the enunciation of law on the subject by the Hon’ble Apex Court in those decisions and taking into account the factual position obtained in this case the question whether Ext.P3 order passed by the Tribunal invites interference, has to be considered. 6. As noticed hereinbefore the Welfare Officer attached to the Department as per Annexure.A3 reported that family of the deceased employee owns 70 cents of land in Kottiyam. At this juncture, it is relevant to note that Annexure.A2 which is the application submitted by the petitioner himself for compassionate appointment, would reveal that actually the family owns 80 cents of dry land. Going by the report the petitioner's mother was an unaided school teacher and she is drawing EPF pension though O.P.(CAT)No.107 of 2015 9 the amount is meagre. The facts that the petitioner was pursuing his MBA studies abroad at the time of his father's death and that even after his death the petitioner was able to continue and complete the said course from United Kingdom are not in dispute. The contention of the petitioner is that, since his father had two wives he and his mother was forced to part with some amount to the other wife and child of his father. Such a contention cannot be countenanced. There cannot be any doubt with respect to the position that a Government employee is not legally entitled to marry a woman during the subsistance of marriage with another woman. When a person despite the statutory interdiction violated the same and entered into a marriage during the subsistence of marriage with another lady the sharing of terminal benefits between the said families cannot a reason worthy to be given any consideration. In the eye of law it has to be taken that on the death of D.Chacko in harness towards terminal benefit his family was given Rs.14,00,000/-. That apart it is a fact that the widow of D.Chacko, the deceased employee who is the mother of the O.P.(CAT)No.107 of 2015 10 petitioner is being given Rs.25,318/- towards family pension. Though these aspects by themselves are not sufficient to decline employement assistance they along with the other aspects referred above are sufficient to arrive at a conclusion of nonexistence of financial destitution. In such circumstances, a consideration of the aforesaid question viz, the impugned order invites interference, in the light of the decisions referred (supra) constrain us to answer the same in the negative. A scanning of the impugned order passed by the Tribunal would reveal that all such relevant aspects were duly taken into consideration by the Tribunal with reference to the decision of the Hon’ble Apex Court on the subject while passing the order of dismissal of the original application. Taking into account the ratio of the decisions referred (supra) and the factual position obtained in this case regarding the financial condition of the petitioner’s family we do not find any reason to hold that the order of the Tribunal warrants interference in exercise of the power of judicial review. O.P.(CAT)No.107 of 2015 11 In short, we do not find any merit in the Original Application. Consequently this Original Petition is dismissed. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A. to Judge