OP (CAT) No. 3761 of 2011 (Z)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939 OP (CAT).No. 3761 of 2011 (Z) ------------------------------ AGAINST THE ORDER IN OA 714/2010 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 25.09.2011 PETITIONERS/PETITIONERS: ------------------------- 1. THE BHARAT SANCHAR NIGAM LIMITED(BSNL) (BSNL), REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, CORPORATION OFFICE,, MUMBAI. 2. THE CHIEF GENERAL MANAGER, BHARAT SANCHAR NIGAM LIMITED (BSNL), KERALA CIRCLE, THIRUVANANTHAPURAM-695 033. 3. THE GENERAL MANAGER, TELECOM DISTRICT BHARAT SANCHAR NIGAM LIMITED, KOLLAM. 4. SUB DIVISIONAL ENGINEER PHONES (CABLES), PUNALUR, KOLLAM DISTRICT. BY ADV. SMT.I.SHEELA DEVI,SC,BSNL(BHARAT SANCHA RESPONDENTS: -------------- 1. ARUN.V. AND ANOTHER MUSSAVARIKUNNU, PUNALUR, KOLLAM. 2. UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF COMMUNICATION,, SANCHAR BHAVAN, NEW DELHI. R,R2 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R1 BY ADV. DR.K.P.SATHEESAN (SR.) R1 BY ADV. SRI.P.MOHANDAS (ERNAKULAM) R1 BY ADV. SRI.S.VIBHEESHANAN R1 BY ADV. SRI.K.SUDHINKUMAR R1 BY ADV. SRI.S.K.ADHITHYAN R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R BY SRI.N.NAGARESH THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 18.07.2017, THE COURT ON 31-08-2017, DELIVERED THE FOLLOWING: ## OPCPAT 3761/2011 ## PETITIONER(S) EXHIBITS EXHIBIT P1- TRUE COPY OF THE OA NO.714/2010 DATED 20.9.2011. EXHIBIT P2- TRUE COPY OF THE REPLY STATEMENT SUBMITTED BY THE PETITIONERS BEFORE CAT, ERNAKULAM BENCH. EXHIBIT P3- TRUE COPY OF THE ORDER IN OA NO.714 OF 2010 DATED 28.9.2011 BY THE CAT, ERNAKULAM BENCH. EXHIBIT P4- TRUE COPY OF THE INTERIM ORDER IN SLP 20631/2010 DATED 8.1.2010. RESPONDENTS' EXHIBITS NIL TRUE COPY P.S. TO JUDGE ## **P. R. RAMACHANDRA MENON & SHIRCY V.,JJ.** ## **==============================** ## **O.P.(CAT)No. 3761 of 2011** **============================== Dated this the 31[st] day of August, 2017** ## **JUDGMENT** ## **Shircy V, J.** The 1[st] respondent's father late Sri Vijayan was an employee of Bharath Sanchar Nigam Ltd.(BSNL ), the 1[st] petitioner. His death was on 5.4.2007 while in service that too eight years prior to his normal date of retirement. On the death of Sri.Vijayan, the 1[st] respondent/applicant submitted an application on 07.01.2008 seeking appointment on compassionate grounds. But the same was rejected under the newly introduced Weightage point system. Aggrieved by the same, the 1[st] respondent/applicant filed the application OPCAT 3761/2011 2 as O.A.No. 714/2010 before the Tribunal (CAT Ernakulam Bench). By an order dated 25.09.2011, the Tribunal disposed of the application after setting aside the order of the petitioner with specific direction to reconsider the application on the basis of the old norms and to implement the decision within a period of four months from the date of communication of the order. The correctness and sustainability of Ext. P1 verdict is under challenge in this original petition. 2. The brief facts for disposal of this petition are as under : The applicant's father who was working as a Telecom Mechanic expired on 05.04.2007. As the applicant was a minor, his mother submitted an application on 01.06.2007 requesting to issue the formal application to seek employment for her son, the applicant on compassionate grounds. Later, the OPCAT 3761/2011 3 applicant submitted an application on 07.01.2008. But it was rejected by the BSNL on the ground that his application does not satisfy the guidelines of the new policy scheme introduced in the year 2007. The OA was filed by him challenging the same with the following prayers: “a) issue appropriate orders setting aside the impugned Annexure 4 issued by the 3[rd] respondent; b) issue appropriate orders, commanding respondents 3 and 4 to reconsider the application for compassionate appointment of the applicant in the light of Annexure 3 policy guidelines, which was existing prior to 27.6.2007, the date of new policy guidelines; c) issue such other direction or orders, as are deemed fit and proper in the facts and circumstances of the case and in the interests of justice.” ## 3. We heard the learned counsel for the BSNL and the learned counsel for the 1[st] respondent/applicant. 4. The BSNL resisted the claim of the applicant OPCAT 3761/2011 4 contending that the 'Weightage Point System' was introduced in the year 2007 to bring uniformity in assessing indigent condition of the family for offering compassionate appointment and applying the scheme the applicant was found as not having the minimum requirements stipulated therein and his family was found not living in indigent condition and thereby his claim was rejected on 20.2.2008. 5. On the other hand, the learned counsel for the applicant relying on the verdict of the Apex Court in **State Bank of India v Jaspal Kaur (2007 (9) SCC 571)** has argued that as the death of the father of the applicant was on 05.04.2007 before introduction of the Scheme dated 27.06.2007, denying the benefit of compassionate appointment to him applying the guidelines of the newly introduced system was not legally justifiable. OPCAT 3761/2011 5 6. Relying on the subsequent decision of the Apex Court in **State bank of India and another V Rajkumar (2010 )11 SCC 661,** the learned counsel for the BSNL contended that after the introduction of the weightage point system, the scheme that was in force at the time when the application was filed will apply and as the applicant secured less than 55 points, he was found not eligible for appointment. The Apex Court has observed that appointment on compassionate ground is not a source of recruitment and a compassionate appointment is a concession and cannot be claimed as a vested right. It is further held as follows: _“ Normally, the three basic requirements to claim appointment under any scheme for compassionate appointment are: (i) an application by a dependent family member of the deceased employee; (ii) fulfilment of the eligibility criteria prescribed under the scheme, for compassionate appointment; and (iii) availability of posts, for_ OPCAT 3761/2011 6 _making such appointment. If a scheme provides for automatic appointment to a specified family member, on the death of any employee, without any of the aforesaid requirements, it can be said that the scheme creates a right in favour of the family member for appointment on the date of death of the employee. In such an event the Scheme in force at the time of death would apply._ _On the other hand, if a scheme provides that on the death of an employee, a dependent family member is entitled to appointment merely on making of an application, whether any vacancy exists or not, and without the need to fulfil any eligibility criteria, then the scheme creates a right in favour of the applicant, on making the application and the Scheme that was in force at the time when the application for compassionate appointment was filed, will apply. But such schemes are rare and in fact, virtually nil.”_ Here in the present case, the application was submitted by the applicant after introduction of the new Scheme. The ground for rejection of the application was on the finding that his family was not living in indigent condition so as to OPCAT 3761/2011 7 extend financial concession to face any crisis. The checklist with reference to the weightage point system calculated with respect to the claim of the applicant have been produced by the BSNL for reference (checklist No.35). In the checklist, the first item is under the caption dependant's weightage. The total number of dependants is 3 and the points awarded is 15. As item No.5 for accommodation, no marks were awarded by the Department though the applicant has a case that his family is residing in a small house having less than 5 cents in extent with an outstanding liability of Rs.2,00,000/-. It is also specifically stated that the family consists of the wife of the deceased employee and his two unemployed sons and there are no other earning member. But that issue was not considered while awarding points as per the weightage point system. It could also be seen from the document furnished by the BSNL though the youngest son of the deceased had just crossed 18 years, he was a student. So, it is not possible to OPCAT 3761/2011 8 conclude that the BSNL had evaluated and assessed the indigent condition of the family in the correct perspective for providing an employment under the compassionate ground and it is so perspicuous from the Check-list. The Scheme was introduced to relieve the family from the sudden financial crisis and hence the direction of the Tribunal to consider the case of the applicant afresh is fully justified, but the further direction that it has to be considered on the basis of the old norms is liable to be interfered as the Rule for consideration of compassionate appointment is the Rule prevalent while considering the application. So, we do not find any justifiable reason to interfere with the order directing to reconsider his application but it should be on the basis of the newly introduced Weightage Point Scheme of 2007. The finding of the Tribunal that his application has to be reconsidered on the basis of the old norms cannot be sustained and is set aside to that extent and the Original Petition is disposed of with the aforesaid OPCAT 3761/2011 9 direction. The BSNL shall pass appropriate orders at the earliest at any rate within two months from the date of receipt of a copy of this judgment. **Sd/-** **P. R. RAMACHANDRA MENON JUDGE** **Sd/SHIRCY V. JUDGE** **ks.** **True copy** **P.S. To Judge**