Praveen S.S. Sakalya v. Comptroller and Auditor General of India and Accountant General (A&E), Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR &** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929** **WP(C).No. 10903 of 2004(S)** **--------------------------** **OA.689/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** **....................** **PETITIONER:** **---------------------** **PRAVEEN.S.S, SAKALYA, KAZHAKUTTOM, TRIVANDRUM - 695 582.** **BY ADV. SRI.P.SANKARANKUTTY NAIR SRI.T.V.AJAYAKUMAR** **SRI.K.SANDESH RAJA** **RESPONDENTS:** **-------------------------** **1. THE COMPTROLLER AND AUDITOR GENERAL OF INDIA, NEW DELHI.** ## **2. THE ACCOUNTANT GENERAL (A&E),** **P.B.NO.5607, M.G.ROAD, TRIVANDRUM - 695 039.** **BY ADV. SRI.S.PRASANTH, ADDL.CGSC SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2008. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.10903/2004 S** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE REPRESENTATION DTD. 29/04/2001. EXT.P2: COPY OF THE PROFORMA DTD.1/10/2001. EXT.P3: COPY OF THE PETITION DTD. 23/03/2002. EXT.P4: COPY OF THE REPLY DTD. 23/07/2002. EXT.P5: COPY OF THE ORDER DTD. 14/01/2003. EXT.P6: COPY OF THE ORDER NO.ADMN.III/S-121/XXIV/322 DTD. 28/03/2003. EXT.P7: COPY OF THE O.M.NO.14014/6/94-Estt.D. DTD. 9/10/1998. EXT.P8: COPY OF THE ORIGINAL APPLICATION 689/2003 DTD. 5/08/2003. EXT.P9: COPY OF THE ORDER IN O.A.NO.689/2003 DTD. 19/08/2003.** **/TRUE COPY/** **P.S.TO JUDGE** _Kss_ ## **K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== W.P(C).No.10903 of 2004 ========================** **Dated this the 1[st] day of February, 2008.** ## **JUDGMENT** ## **Balakrishnan Nair,J.** The writ petitioner challenges Exts.P6 and P9 orders. Ext.P6 is the order passed by the competent authority rejecting his claim for appointment on compassionate grounds. By Ext.P9, the Central Administrative Tribunal, Ernakulam Bench declined to interfere with the same. Hence, this writ petition challenging Exts.P6 and P9. The brief facts of the case are as follows: 2. The petitioner's parents met with a road accident. His mother succumbed to the injuries on 8.8.1991. At that time, he was aged 8 and his younger brother aged 4. His father remarried on 16.9.1993 and thereupon the petitioner and his brother became eligible for family pension, which was being paid at the rate of Rs.1,800/-. On attaining majority, the petitioner submitted Ext.P1 application on 29.4.2001 claiming employment under the dying in harness scheme. When the said 2 application was not considered, he approached this court. But this Court turned him away to approach the Central Administrative Tribunal. While so, his claim was rejected by Ext.P4. The petitioner challenged the said order before the Central Administrative Tribunal and O.A. No.690 of 2002 was allowed by the Tribunal quashing Ext.P4 and the competent authority was directed to pass a speaking order. In obedience to that direction, Ext.P6 order was passed on 28.3.2003. The relevant portion of the said order reads thus: "In the light of the fact that the father is employed and the fact that the family of the deceased has managed for nearly 12 years, along with the reasonable financial position of the family, the undersigned do not consider this a fit case for compassionate appointment. Therefore, Shri.S.S. Praveen cannot be offered appointment on compassionate ground in the office of the Accountant General (A&E), Kerala." The said order was again challenged before the Central Administrative Tribunal by filing Ext.P8 O.A. But the Central 3 Administrative Tribunal, Ernakulam Bench dismissed the application by Ext.P9 order. The Tribunal upheld the contention of the respondents that the petitioner's family is not in a difficult situation warranting employment assistance on compassionate ground. It was also noticed that the applicant's mother alone was not a bread-winner of the family, his father was also decently employed under the Kerala Government. The family received some amount as compensation from the Motor Accidents Claims Tribunal. Apart from that the applicant along with his brother was receiving family pension at the rate of Rs.1,800/-. The Tribunal also noticed that 12 years have lapsed after the death of his mother. So, the Tribunal declined to interfere with Ext.P6. 3. The writ petitioner challenges Exts.P6 and P9. The learned counsel for the petitioner submitted that even if there is an earning member in the family, still pension can be granted. Reference was made to paragraph 10 (a) of Ext.P7. The said clause reads as follows: 4 "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 dependants, assets and liabilities left by the Government 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." 4. In this case, the petitioner points out his claim for employment notwithstanding the employment of his father should have been considered by the Secretary of the Department/Ministry concerned. The failure of the competent authority to consider his claim under the above quoted paragraph vitiated the impugned order,it is submitted. The learned counsel also pointed out that the receipt of family pension and other terminal benefits is also taken as a ground for rejecting his claim. The same is impermissible in view of the decisions of the 5 Apex Court in **Balbir Kaur and another** v. **Steel Authority of India Ltd. and others** - 2000(6) S.C.C. 493 and **Govind Prakash Verma** v. **Life Insurance Corporation of India and others** - 2005(10) S.C.C. 289. The respondents having failed to consider his claim in the light of the principles laid down by the Apex Court in those decisions, it is submitted that the impugned orders are vitiated and they are liable to be interfered with. 5. We heard the learned counsel for the Central Government also. The learned counsel supported the impugned orders and contended that the reasoning and conclusion of the Tribunal are perfectly legal and valid. 6. It is true that the claim for employment cannot be rejected on the ground of payment of terminal benefits to the family of the deceased employee. There are several other factors which also have to be taken into account. We notice that the rejection of the petitioner's claim is not based on the receipt of the terminal benefits alone or the family pension alone. Various other relevant factors have been taken into account. Therefore, the claim made by the petitioner relying on the above mentioned 6 decisions cannot be accepted. We notice that the petitioner's father is well placed, though he re-married. There is no material on record that he is neglecting to maintain the petitioner or his brother. Further, the petitioner and his brother are receiving family pension also. More than 16 years have lapsed after the death of the petitioner's mother. The claim for appointment under the dying in harness scheme is meant to give immediate help to the family of the deceased Government servant. It should not be treated as another method of appointment to public services contrary to the rules and regulations governing the same - see decision of the Apex Court in **Umesh Kumar Nagpal** v. **State of Haryana** - 1994(4) S.C.C. 138. There are several other decisions of the Apex Court also following the principles laid down in " **Umesh Kumar Nagpal** ". Going by the above decisions, we are of the view that the claim for employment made after 10 years of the death of Government servant is unsustainable. In this case, as mentioned earlier, the condition of the family cannot be described as one which requires assistance even after the lapse of 10 years. If the condition of 7 the family was such that it required employment assistance, even if his father was employed it was for the petitioner to move the Central Government pointing out the special grounds for relaxation under paragraph 10(a)of Ext.P7. Going by Ext.P1 representation, we find no such ground has been made out in Ext.P1. Therefore, we find nothing wrong with the Government in not considering his claim under paragraph 10(a) of Ext.P7. In the result, the writ petition fails and it is dismissed. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 1/2