AMLA.R. ARAMAM v Union of India

**“C.R.”** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** **OP (CAT).No.862 of 2013** **AGAINST THE ORDER/JUDGMENT IN OA 476/2012 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 28-01-2013** ## **PETITIONER/APPLICANT:** **AMLA.R. ARAMAM, KRA/A 40, KURAVANKONAM, MARKET JUNCTION, KOWDIAR P.O., THIRUVANANTHAPURAM - 695 003.** **BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR** ## **RESPONDENTS/RESPONDENTS:** **1 UNION OF INDIA REPRESENTED BY THE SECRETARY, INDIAN AUDIT AND ACCOUNTS DEPARTMENT, NEW DELHI - 110 001. 2 THE ACCOUNTANT GENERAL (A&E) KERALA THIRUVANANTHAPURAM - 695 039.** **3 THE ACCOUNTS OFFICER (ADMINISTRATION) OFFICE OF THE ACCOUNTANT GENERAL (A&E)KERALA, THIRUVANANTHAPURAM - 695 039.** **BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA SHRI. K.R.RAJKUMAR, CGC** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 12.06.2019, THE COURT ON 18.06.2019 PASSED THE FOLLOWING:** _OP(CAT) No.862/2013_ 2 ## **JUDGMENT** ## Ashok Menon, J. Whether the applicant/petitioner is entitled to compassionate appointment as a consequence of her mother, employed in the office of the 2[nd] respondent– Accountant General, dying in harness, is the question that arises for determination before us. 2. The Central Administrative Tribunal, Ernakulam Bench in O.A.No.476/2012 upheld the act of the respondents in rejecting the claim of the applicant for the reason that her sister was a Bank employee and applicant herself was a law student equipped educationally for her livelihood and that her family was receiving family pension of Rs.13,805/- and Dearness Relief thereon apart from the earnings of her father, and therefore, the family could never be said in penury so as to get the relief of compassionate appointment. 3. Aggrieved by the impugned order of the Tribunal dated 28.01.2013, the applicant prefers this O.P. _OP(CAT) No.862/2013_ 3 4. The facts in brief are thus: Late S.Radhamani died while working as Accounts Officer in the Accountant General's Office survived by two daughters, and her husband. The elder daughter is employed in a Bank and she stays separately. The applicant claims that she and her father were wholly depending on her mother's income for their livelihood. The family pension received by them is too meager to make ends meet. That apart, loan availed from the Department by the deceased for constructing a residential building was outstanding. The family is indebted to the tune of Rs.15 lakhs and therefore, the applicant is in dire need of an employment to support her family. She filed Annexure A4 application before the 2[nd] respondent on 11.06.2010, for which, the respondents did not respond. Finding that there was no response, the applicant sent yet another letter to the 2[nd] respondent at Annexure A5 on 08.05.2012, to which, the 3[rd] respondent sent a reply rejecting her claim for compassionate appointment stating that the Departmental Screening Committee constituted under the provisions of _OP(CAT) No.862/2013_ 4 the Scheme did not recommend her name for compassionate appointment on the ground that out of three of the surviving members of the deceased's family, two were earning. The Tribunal did not interfere. 5. The respondents countered the claim contending that consequent to the demise of Radhamani the members of her family were given the following terminal benefits as thus: Death Gratuity Rs.10,00,000/GPF Balance Rs.10,83,162/CGEGIS Rs. 1,02,134/Encashment of leave at credit Rs. 3,15,586/-------------Total Rs.25,00,882/============== That apart, a family pension was also provided. It is pointed out that the Screening Committee was of the opinion that the family of the deceased had received terminal benefits exceeding the monetary limit of Rs.14 lakhs set by C&AG of India in Circular No.13 dated 09.03.2009, which is produced as Annexure A6. The respondents would also rely upon the decision of the Apex Court in _**Umesh Kumar Nagpal v. State of Haryana, JT 1994 (3) SC 525**_ , wherein it was held that compassionate appointment should be given only to the _OP(CAT) No.862/2013_ 5 dependent of an employee dying-in-harness leaving his family in penury without any means of livelihood. It is also pointed out that there was no outstanding liability due to the Department from the deceased under house building advance. 6. We heard Senior Advocate Dr.K.P.Satheesan appearing for the petitioner and Sri.K.R.Rajkumar, CGC for the respondents. 7. The Tribunal has relied upon the decisions of the Apex Court in _**Umesh Kumar Nagpal** (supra)_ _**, Himachal Road Transport Corporation v. Dinesh Kumar, JT 1996 (5) SC 319, Hindustan Aeronautics Ltd. v. Smt.Radhika Thurumalai, JT 1996 (9) SC 197**_ and _**State of Haryana & ors. v. Ram Devi & ors., JT 1996 (6) SC 646**_ , to arrive at a conclusion that terminal benefits received by the family of the deceased would disentitle them from claiming compassionate appointment. That apart, two decisions of the Kerala High Court in _**Bank of**_ _**Travancore & anor. v. Aswathy**_ , W.A.No.599/2010 dated 17.12.2010 and _**Canara Bank & anor. v. M.Mahesh Kumar**_ , W.A.No.1313/2003 dated 24.08.2006, wherein it was held _OP(CAT) No.862/2013_ 6 that terminal benefits cannot be treated as the sole yardstick to deny appointment under dying-in-harness scheme, has been distinguished. It was observed that, in those cases the family had received a benefit of only Rs.2.5 lakhs and because of the treatment of the ex-employee, who was suffering from kidney failure, a sum of Rs.16 lakhs was found to have been spent by the family for his treatment. Compared to that, the applicant's family had received Rs.25 lakhs as terminal benefits and also has two earning members in the family. 8. Terminal benefits cannot be taken into consideration for assessing the claim for compassionate appointment. We find support for that view in the decisions of the Honourable Supreme Court in _**Govind**_ ## _**Prakash Verma v. Life Insurance Corporation of India**_ ## _**and others, 2005 (10) SCC 219**_ , held thus: _“6. In our view, it was wholly irrelevant for the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according to the appellant, has now been reduced to half) and other amounts paid on account of terminal benefits under the Rules. The scheme of compassionate appointment is over and above_ _OP(CAT) No.862/2013_ 7 _whatever is admissible to the legal representatives of the deceased employee as benefits of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules...... the terminal benefit received by the widow and the family pension could not be taken into account.”_ ## Similarly, in _**Canara Bank and another v. M Mahesh**_ _**Kumar, 2015 (7) SCC 412**_ , it was held that grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance. 9. The learned CGC Shri Rajkumar appearing for the respondents contends that compassionate appointment can be made only upto the maximum of 5% of vacancies falling under direct recruitment quota in any Group C or D post. The Counsel also states that in view of the fact that the family received Rs.25 lakhs as terminal benefits, there is no penury in the family calling for any compassionate appointment. 10. It is true that the Honourable Supreme Court in a catena of decisions held that merely death of an employee does not entitle his family to compassionate employment and that the authority concerned must _OP(CAT) No.862/2013_ 8 consider as to whether the family of the deceased employee is unable to meet the financial crises resulting from the employee's death. 11. A major portion of the terminal benefits that is received by the applicant's family is by way of savings in the provident fund, gratuity, and on account of leave in credit. The fact that the petitioner's sister, who is married having a family of her own, being employed in a bank, is not a reason to reject the applicant's claim. There is no evidence regarding the father being profitably employed or earning income. The only source of income received by the petitioner and her father is therefore the family pension, which is a very meager amount and would not be sufficient to sustain the family, particularly when the petitioner herself is a student studying for law. 12. We are of the opinion that the Tribunal was not justified in rejecting the claim for the reason that the petitioner was studying for LLB equipped educationally to make a living for herself. The learned CGC submits that there were other more _OP(CAT) No.862/2013_ 9 deserving candidates, who were given employment in place of the petitioner. The authorities cannot make a comparative study as to who among the claimants for appointment on compassionate ground are more deserving. They do not have such an adjudicatory power. All that they can determine is whether the applicant claiming appointment on compassionate ground is eligible and coming within the criteria fixed for appointment under the scheme for dying-in-harness. In case the applicant is found eligible, she has to be empanelled among the persons who have laid their claim for such appointment. The authorities cannot exceed the limit of 5% of the total vacancies arising, for appointment on compassionate grounds. But, in case the applicant falls within the criteria required for compassionate appointment, she is to be empanelled in the list, and she could be given employment in the following year or in the year next to that in accordance with the seniority among the claimants, who seek appointment on compassionate ground. _OP(CAT) No.862/2013_ 10 13. From the reply sent by the Department it appears that the petitioner's claim was rejected after two years for the sole reason that the Departmental Screening Committee found that out of the three surviving members in the family of the deceased, two are earning. It is also seen that the financial condition of the family of the deceased was assessed and that there was no need for appointment on compassionate ground. The claim has been summarily rejected without assigning any satisfactory reason. The reasons stated in Annexure A6 dated 23.05.2012 does not appear to be very reasonable. In case the claim of the petitioner was not sustainable, there was no need for the two years delay in responding to her claim. She had to sent a reminder at Annexure A5 for getting a reply from the Department. 14. We are therefore of the opinion that the Tribunal did not come to the right conclusion in rejecting O.A.No.476/2012 vide the impugned order. The Order is not sustainable, and is therefore,set aside. _OP(CAT) No.862/2013_ 11 The Original Petition is allowed and the respondents are directed to consider the application of the petitioner for compassionate appointment in accordance with the guidelines and the scheme afresh within a period of two months from the date of receipt of this judgment. No costs. **Sd/-** **V.CHITAMBARESH** **JUDGE** **Sd/-** _dkr_ **ASHOK MENON JUDGE** _OP(CAT) No.862/2013_ 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 COPY OF THE ORDER DATED 28.01.2013 IN O.A.NO.476/2012 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH EXHIBIT P2 COPY OF O.A.NO.476/2012 FILED BY THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXHIBIT P3 COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THER ESPONDENTS DATED 06.08.2012 EXHIBIT P4 COPY OF THE REJOINDER FILED BY THE PETITIONER DATED 04.10.2012 EXHIBIT P5 COPY OF THE M.A. FILED BY THE PETITIONER FOR ACCEPTING ADDITIONAL DOCUMENT DATED 17.01.2013.**