RENUKA K v. Bharat Sanchar Nigam Limited & Ors

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942** ## **OP (CAT).No.124 OF 2020** **AGAINST THE ORDER IN OA 1032/2018 DATED 25-09-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONER/PETITIONER IN O.A:** **RENUKA K AGED 45 YEARS W/O. LATE MURALEEDHARAN K, KURUMGATTIL HOUSE, NEAR SIVA TEMPLE, PANAMUKKU P O, NEDUPUZHA, THRISSUR-680007.** **BY ADVS. SRI.P.NANDAKUMAR SHRI.S.ANEESH** ## **RESPONDENTS/RESPONDENTS IN OA:** **1 BHARAT SANCHAR NIGAM LIMITED REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, BHARAT SANCHAR BHAVAN, HARISH CHANDRA MATHUR LANE, JANPATH, NEW DELHI - 110001.** - **2 THE GENERAL MANAGER, TELECOM DISTRICT, BSNL BHAVAN, KOVILAKATHUMPADAM, THRISSUR - 680022.** - **3 THE CHIEF GENERAL MANAGER, BSNL, OFFICE OF THE CHIEF GENERAL MANAGER, KERALA TELECOM, THIRUVANANTHAPURAM-695033.** - **4 THE ASSISTANT GENERAL MANAGER (R & E) OFFICE OF THE CGMT, KERALA CIRCLE, THIRUVANANTHAPURAM-695033.** **R1-R4 BY ADV. SRI.T.SANJAY** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 01-02-2021, THE COURT ON 15-02-2021 DELIVERED THE FOLLOWING:** O.P (CAT) No.124 of 2020 2 # **ALEXANDER THOMAS & T.R.RAVI, JJ.** **================================== O.P (CAT) No.124 of 2020** _[arising out of the order dated 25.09.2019 in O.A No.1032/2018 of the CAT, Ekm Bench]_ **==================================** Dated this the 15[th] day of February, 2021 ## **JUDGMENT** ## **ALEXANDER THOMAS, J.** The prayers in the aforecaptioned Original Petition filed under Articles 226 & 227 of the Constitution of India are as follows (see page No.6 of the paper book of this O.P) :- - _“(i)To call for the records leading to Exhibit P1 order dated 25.09.2019 in O.A.No.1032 of 2018 of the Central Administrative Tribunal and set aside the same._ - _(ii) To issue such other orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ 2. Heard Sri.P.Nandakumar, learned counsel appearing for the petitioner herein/sole original applicant before the Tribunal in the O.A and Sri.T.Sanjay, learned Standing Counsel for the Bharat Sanchar Nigam Limited (BSNL) appearing for all the respondents in this O.P/respondents in the O.A. 3. The petitioner herein (original applicant) had filed O.P (CAT) No.124 of 2020 3 ## Ext.P-2 original application in O.A No.1032/2018 before the ## Central Administrative Tribunal, Ernakulam Bench, with the following prayers (see page No.21 of this paper book) :- - _“I) To call for the records leading to Annexure A5 and quash the same._ - _II) To call for the records leading to Annexure A6 and quash the same to the extent it denies weightage for compassionate appointment to families living in a relative's house._ - _III) To declare that the applicant is entitled to be considered for compassionate appointment under Annexure A4 scheme._ - _IV) To direct the respondents to consider Annexure A3 application and give an appointment to her or her son under the compassionate appointment scheme._ - _V) To issue such other orders or directions as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.”_ 4. The Tribunal, as per the impugned Ext.P-1 final order dated 25.09.2019 has dismissed O.A No.1032/2018 on the ground that the respondents have correctly assessed her claim and had found not to be an indigent person, who is eligible and entitled to be considered for compassionate appointment consequent to the death of her husband, who was an employee in the respondent-BSNL. It is this impugned final order at Ext.P-1 that is under challenge in this original petition. O.P (CAT) No.124 of 2020 4 5. The husband of the original applicant had held the post of Telephone Mechanic, under the respondent-BSNL authorities (Group ‘C’ post) and he had died on 06.08.2015, while he was in service. It appears that the case of the petitioner is that she had made frantic enquiries to ascertain the case of the petitioner is that because of her extreme economic and financial distress and as she was having an unmarried daughter then aged 17 years and a son then aged 19 years and she had found it extremely difficult to pull on with her life. She had tried to get information for putting up her claim for securing compassionate appointment under the BSNL authorities, in view of the death of her husband, who had died before he had retired from service. Since she could not collect the requisite information, she was advised to send a petition directly to the Hon’ble Prime Minister and accordingly she had submitted Annexure-A1 styled as a ‘mercy petition’ dated 06.01.2016 addressed to the Hon’ble Prime Minister pointing out her right and seeking for necessary directions to the respondent-BSNL authorities to consider her claim for compassionate appointment. It appears that the competent O.P (CAT) No.124 of 2020 5 authority of the Union Government had forwarded AnnexureA1 mercy petition dated 06.01.2016 to the 3[rd] respondent-Chief General Manager and later, the 4[th] respondent-Assistant General Manager had issued Annexure-A2 letter dated 11.01.2016 instructing the petitioner to submit the application for securing compassionate appointment in the prescribed proforma. It is thereafter, only she could secure a copy of proforma of the application and submitted Annexure-A3 application dated 17.05.2016 in the prescribed proforma for securing compassionate appointment under the respondentBSNL authorities. Further it appears that Annexure-R1(a) is the norms issued by the Union Government authorities on 09.10.1998 for regulating the matters in relation to compassionate appointment in various departments under the Union Government. Further, after the formation of the Bharat Sanchar Nigam Limited as a separate company, orders have been issued by them to apply Annexure-R1(a) norms in the case of the BSNL as well. Annexure-A4/Annexure-R1(b) dated 26.07.2007, is the copy of the guidelines and norms applicable in the case of the respondent-BSNL authorities in the matter of O.P (CAT) No.124 of 2020 6 consideration of claims for compassionate appointment consequent to the death of the employee concerned. The respondent-authorities have considered the case of the petitioner only on 05.04.2018 and has held that she is not entitled to get any weightage norms for the accommodation parameter and that the total marks she could secure is only 47. Further that, in view of para 4.0 of Annexure-A4/Annexure R1(b) dated 27.06.2007, unless the applicant for compassionate appointment secures at least 55 marks and above for the various parameters in Annexure-A2/Annexure-R1(b), the applicant cannot be treated as indigent to be eligible and entitlement for consideration of compassionate appointment and that since the petitioner has secured only 47 marks out of 100 marks, she is not entitled for consideration of compassionate appointment under the BSNL authorities. 6. Before the Tribunal, the respondent-BSNL authorities have filed Ext.P-3 reply statement dated 11.07.2019, along with six documents viz. Annexure-R1(a) to AnnexureR1(f). From a reading of the impugned Ext.P-1 final order dated 25.09.2019 in the present O.A No.1032/2018, it can be seen O.P (CAT) No.124 of 2020 7 that when the matter was taken up for final hearing on 25.09.2019, a representation has made on behalf of the counsel for the original applicant that the case be adjourned on account of the inconvenience of the counsel concerned. But the said request was declined by the Tribunal and the Tribunal has passed the impugned Ext.P-1 final order, without affording reasonable opportunity of being heard to the original applicant through her learned counsel and has decided the matter, after hearing the learned Standing Counsel for the BSNL authorities appearing for the respondents therein and after taking note of the pleadings in Ext.P-3 reply statement, etc. In Ext.P-3 reply statement as well as in the impugned Ext.P-1 final order rendered by the Tribunal, one of the aspects noted is that the original applicant has misrepresented before the Central Government authorities while submitting Annexure-A1 mercy petition, that she was not owning a house or land at the time of her application and that the inspection conducted by the BSNL authorities are found it otherwise and that as per AnnexureR1(d)-returns dated 20.04.2013, a return of the immovable properties was earlier submitted by the applicant’s husband O.P (CAT) No.124 of 2020 8 while he was in service will disclose that he was having a three cent property with an old house thereon belonging to him. Hence, the Tribunal has taken a serious view that the original applicant has suppressed vital materials from both the respondent-BSNL authorities as well as the Tribunal. The Tribunal has also held that the award of only 47 marks out of 100 to the original applicant, as referred to in Annexure-A5 has been done correctly by the BSNL authorities and that therefore, the stand of the respondent-BSNL authorities that she is not entitled for compassionate appointment, is not liable for any interference at the hands of the Tribunal. It is on this basis, the Tribunal has dismissed the abovesaid O.A filed by the original applicant, as per the impugned Ext.P1 final order dated 25.09.2019. 7. Before getting into the various factual submissions made by both sides, it may be pertinent to refer to the legal position governing the field. In _**State Bank of India & anr. v. Rajkumar**_ [(2010) 11 SCC 661], the Apex Court has held that the appointment on compassionate ground is not a source of recruitment and that the compassionate appointment is only O.P (CAT) No.124 of 2020 9 a concession and cannot be claimed as a vested right, etc. 8. A Full Bench of this Court in the case in _**Bharat Sanchar Nigam Ltd. v. Rajesh**_ [2015(2) KLT 478]=[2015 (2) KHC 117]= [ILR 2015 (2) Ker 1] = [2015 (2) KLJ 607], has held after placing reliance on the law declared by the Apex Court in **Rajkumar’s** case supra [(2010) 11 SCC 661] that as the applicant for compassionate appointment cannot claim any vested right for appointment, the crucial date to be considered is the norms as on the date of consideration of the application and not the norms as on the date of death of the employee, etc. In the case in _**Chairman-cum-Managing Director, BSNL & anr. v. Syamkumar.B**_ [2017 (3) KHC 878 (DB)], has held that based on the reference answered by the Full Bench of this Court in _**Rajesh**_ **’s case** supra [2015 (2) KLT 478 (FB)], the original petition concerned, viz. O.P (CAT) No.458/2010 was later disposed of by the Division Bench of this Court concluding that the relevant date for consideration of an appointment on compassionate ground is not the norms as on the date of death, but the norms as on the date of consideration of the application for appointment, etc. Following the abovesaid views, a Division O.P (CAT) No.124 of 2020 10 Bench of this Court in _**Shyamkumar**_ **’s case** supra [2017 (3) KHC 785 (DB)] has held in para 11 thereof that in view of the decision of the Apex Court in _**Rajkumar**_ **’s case** supra [(2010) 11 SCC 661], when an earlier scheme is abolished and is replaced by a new scheme, all the applications will have to be considered by the new scheme and that this question is also reiterated in the decision of a Full Bench of this Court in _**Rajesh**_ **’s case** supra [2015 (2) KLT 478 (FB)] and that in view of the abovesaid decisions rendered by the Apex Court and the Division Bench of this Court, the granting of benefits in favour of certain applicants by the Tribunal based on the earlier scheme of the BSNL will not entitle the respondent therein (original applicant before the Tribunal), for appointment on compassionate grounds. It will be pertinent to refer to para Nos.7 to 12 of the judgment of the Division Bench of this Court in _**Chairman-cum-Managing Director, BSNL & anr. v. Syamkumar.B**_ [2017 (3) KHC 878 (DB)], which read as follows :- _“7. The learned counsel for the respondent has placedreliance on the decisions of the Apex Court in_ _**State Bank of India v. Jaspal Kaur [2007(9)SCC 571] and State Bank of India v Vikas Dubey**_ O.P (CAT) No.124 of 2020 11 _**[2007(9)SCC 579]** to contend that the scheme which was in force at the time of death of the employee was the crucial date to be considered for compassionate appointment as the new scheme was introduced thereafter. But it is to be noted that subsequently in_ _**State bank of India and another V Rajkumar (2010 )11 SCC 661,** 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 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.”_ _It is relevant to note that a Full Bench of this Court on a reference by a Division Bench in_ _**Bharat Sanchar**_ O.P (CAT) No.124 of 2020 12 _**Nigam Ltd. v. Rajesh [2015(2)KLT 478]** relying on the law declared by the Apex Court in_ _**Rajkumar's case** (supra) held that as the applicant cannot claim any vested right for appointment, crucial date to be considered is the date of consideration of the application and not the date of death of the employee. It reads as follows:_ “Therefore, we are of the view that the tests laid down by the Apex Court in _**Rajkumar's case (2010 (11) SCC 661)** will hold the field. There cannot be any generalized rule that the scheme as on the date of death or date of application will have to govern the parties. Always the question will have to be considered whether the applicant had accrued a vested right as on the date of modification of an existing scheme or amendment of a scheme. The question of retrospective operation of such a scheme or retroactivity also will have to be addressed on such a legal principle”._ _8. So the reference was answered by the Full Bench relying on the law declared in_ _**Rajesh's case** and the Division Bench disposed of O.P(CAT)No.458/2010 concluding that the relevant date for consideration of an appointment on compassionate ground is not the date of death, but the date of consideration of the application for appointment. It is pertinent to note that the competent officials of BSNL evaluated the application of the respondent and rejected it as he had secured only 48 points. Applicants who secure only 55 points or more are considered as eligible as per the newly formulated policy guidelines. Hence the BSNL can not be found fault with in rejecting the application of the respondent. At the same time the contention raised by the BSNL that terminal benefits due to the family had been disbursed and so on that ground also he is not entitled for appointment, is only to be rejected as it is the vested right of the bereaved family._ _9. Of-course the learned counsel for the respondent would point out that in_ _**Canara Bank and another vs. M.Mahesh Kumar (2015 KHC 4390)**_ O.P (CAT) No.124 of 2020 13 _the Apex Court directed to consider the case of the respondents therein for compassionate appointment as per the scheme which was in vogue at the time of death of the employee. But the factual matrix of that decision is different from that of the case in hand. The scheme of the Canara Bank introduced in the year 2005 providing only ex-gratia payment in lieu of compassionate appointment stands superseded by the scheme of 2014 which has revived the scheme of 1993 providing compassionate appointment. It is in that circumstance, the Apex Court dismissed the appeal filed by the bank and directed the bank to reconsider the claim for compassionate appointment in accordance with law, as per the scheme which was in vogue at the time of the death of the employee concerned._ _10. The learned counsel for the respondent would further argue that in an identical case (T.A.No.128/2008) this Court has found that the rule prevalent for consideration of compassionate appointment is the rule prevalent as on the date of demise of the employee and the fact that another scheme has come into force while considering the application is not a reason to hold that the new scheme is applicable irrespective of the death of the employee and the Apex Court has dismissed the SLP preferred against the verdict. Hence, the order has attained finality. But materials are not made available to verify whether the facts are identical and more over the disposal of the SLP was not on merits, as submitted before us._ _11. In short, we find that the decision of the Apex_ Court in **Raj kumar's case** (supra) that when earlier scheme is abolished and is replaced by a new scheme, all applications will have to be considered by the new scheme, as well the decision of the Full Bench of this Court in **Rajesh's case** (supra) relying on the said proposition law, are to be followed to decide the case in hand. Granting of benefits in favour of certain applicants by the Tribunal based on the earlier scheme of BSNL will not entitle this _respondent for appointment on compassionate grounds._ _12. It is also discernible from the records that though the respondent had attained the age of majority_ O.P (CAT) No.124 of 2020 14 _in the year 2007 the application was submitted by him only in the year 2009. No explanation is forthcoming for the delay in submitting the application.”_ 9. Later, a three Judge Bench of the Apex Court in the case in _**Santhosh N.C. v. State of Karnataka & Ors.**_ [AIR 2020 (SC) 1401 = 2020 (2) KHC 371], has held in para No.20 thereof that applying the law governing compassionate appointment culled out from the judgments considered in the said case, their Lordships of the three Judge Bench in that case, are of the considered opinion that the norms prevailing on the date of consideration of application, should be the basis for consideration of claim for compassionate appointment, etc. and not on the basis of the norms as it stood at the time of death of the employee. 10. In this context, it will also be relevant to note that the matter in issue raised and decided in the aforecited decisions was in respect of cases, where the norms or scheme applicable for compassionate appointment was later amended by the employer/department concerned compared to the norms/scheme, which were in force at the time of the death of the employee concerned. So, the issue in those cases was as to O.P (CAT) No.124 of 2020 15 whether the original norms/scheme, which was in force, at the time of the death of the employee concerned or the later amended norms, which was in force at the time of the consideration of the claim of the applicant for compassionate appointment, that is to be taken into account. It has been held therein that since compassionate appointment is only a concession and there is no question of any vested right for such consideration, the applicant concerned cannot contend that the norms, which were in force at the time of death of the employee concerned, should be taken into account for determining the eligibility and entitlement of a person and that in such cases, where the norms are subsequently amended, it is the subsequent norms, which was in force at the time of consideration of the application that should be reckoned and taken into consideration. 11. In that regard, it is also pertinent to note that it is clearly admitted by the respondent-BSNL authorities in para No.7 of Ext.P3 reply statement dated 11.07.2019 filed by them before the Tribunal that as per the prevailing Rules on the subject, the weightage points, is to be determined as per the O.P (CAT) No.124 of 2020 16 status as on the date of the application. 12. It will be pertinent to refer to the relevant portion of para No.7 of Ext.P3 reply statement (see page No.7 of the paper book of this O.P), which reads as follows : “ _**As per the prevailing Rules of the subject, weightage point is determined as per the status as on the date of application**_ . ………………….” In view of the strong objections raised by the respondent-BSNL authorities regarding the issue of entitlement of the petitioner for compassionate appointment, both sides have submitted additional pleadings. In the instant case, the petitioner’s husband had died on 06.08.2015. Much prior to that, while he was in service, he had submitted Annexure-R1(d) dated 20.04.2013, which is a copy of the returns of the immovable properties submitted by him before the respondent-BSNL authorities, in which it has been stated that he owns a property having an extent of 3 cents and an old house thereon, which is his ancestral house. It appears that at the time when the employer had died, the petitioner and her two children were staying with him in the said ancestral property comprising of an old house constructed in an immovable property having an O.P (CAT) No.124 of 2020 17 extent of 3 cents. Before the the death of the employee, he had purchased yet another property as per Ext.P5 registered sale deed No.963/2012 of SRO, Ayyanthole, Thrissur dated 09.03.2012 from a third party in the name of his wife (petitioner herein), which is the latter property having an extent of 7 cents. Later, the employee and his wife (the petitioner) had submitted application for housing loan before the branch concerned of the Canara Bank and had availed the loan 05.06.2015, which is about two months prior to the death of the employee. The case of the petitioner is that after the death of the employee 0n 06.08.2015, she had found that she was not in a position to manage the frequent demands made by the financial institution concerned for repayment of the loan account and therefore, she was constrained to sell the abovesaid old property consisting of an old house constructed in 3 cent property (which is the subject matter of Annexure-R1(d) returns) to a third party, as per Ext.P6 registered sale deed No.4627/2015 of SRO , Thrissur dated 11.12.2015. Since, she did not have any other house to reside, the purchaser of the property covered by Ext.P6 had agreed that she and her O.P (CAT) No.124 of 2020 18 children will be permitted to reside in the said old house comprised in 3 cents of property for a period of about 3 months or so and accordingly, Ext.P4 rent deed dated 11.12.2015 was executed between the petitioner herein and the purchaser covered by Ext.P6 sale deed. The said purchaser was gracious enough to permit the petitioner and her two children to reside in the said property till the end of March, 2016. Further, on the basis of the sale proceeds emanated from Ext.P6 registered sale deed dated 11.12.2015 and also the terminal benefits received on account of the death of the employee concerned, the petitioner had cleared the loan account with the Canara Bank on 18.01.2016, as certified in Ext.P7 letter dated 19.01.2021 issued by the Canara Bank, West Palace Branch, Thrissur. 13. The correctness of Ext.P7 certificate dated 19.01.2021 issued by the Canara Bank authorities about the closure of the loan account is also confirmed by Annexure R1(e) letter dated 03.05.2016 issued by the Canara Bank authorities to the respondent BSNL office on which the respondents have placed reliance. Later, as agreed with the previous purchaser, the petitioner and her children had to vacate the said rented O.P (CAT) No.124 of 2020 19 premises covered by Ext.P4 rent deed after March 2016 and since she was facing extreme financial hardships, she was not even in a position to take up another premise on rent. Accordingly one of the close relatives of her husband had permitted the petitioner and her two children to reside in the house owned by the said relative along with them from April 2016 onwards till she is in a position to complete the construction of the house in the property covered by Ext.P5. Further it appears that the construction of the said house in the property covered by Ext.P5 was duly completed in March 2017 and the petitioner could secure Ext.P8 occupancy certificate dated 10.03.2017 issued by the Thrissur Municipal Corporation in respect of the said residential property. Later, the said Municipal Corporation has also numbered the said building and has issued Ext.P9 property tax receipt dated 25.03.2017 in respect of the said residential property. Ext.P10 is the residential certificate dated 28.06.2017, issued by the Thrissur Municipal Corporation in respect of the said residential building. Ext.P11 is the certificate issued by the Indian Oil Corporation authorities certifying that petitioner had availed a O.P (CAT) No.124 of 2020 20 gas connection in the said new house on 17.06.2017. Hence, the abovesaid documents referred as per Exts.P4 to P11 have not been, in any manner, disputed by the respondents. Further, some of the documents are registered sale deeds and those documents have been registered in accordance with the mandatory provisions contained in the Registration Act as can be seen from Exts.P5, P6, etc. Exts.P8 to P10 are statutory certificates issued by the Thrissur Municipal Corporation in accordance with the provisions contained in the Kerala Municipality Act, 1994. Ext.P11 is the certificate issued by the Indian Oil Corporation, which is an undertaking fully owned by the Government of India. The petitioner has clearly averred in the petition that after completion of the construction of the new house covered by Ext.P5 immovable property, she and her children have shifted to the new residence and had started residing there from May, 2017, onwards. 14. It appears that the inspection was conducted by an official of the BSNL to ascertain the veracity of the claims made by the petitioner in Anx.A3 application dated 17.05.2016 for compassionate appointment. The respondent BSNL authorities O.P (CAT) No.124 of 2020 21 had produced copy of the said inspection report dated 27.06.2016 issued by the officials as Anx.R1(g) along with the statement dated 29.01.2020 filed by them before this Court in this case. 15. A reading of Anx.R1(g) inspection report would show that the same is said to have been issued by the official concerned on 27.06.2016 and it is clearly certified as found in clause No.9, thereof that the petitioner has no source of income of the family from land/cultivable/shop or that no income from any family member already in service, etc. 16. As regards column No.10 as to whether the applicant was residing in a rented accommodation, it is stated that the applicant was residing in a relative's house and that the name of the lady is one Smt.Lalitha S. Unni, and her address is also shown therein and further that the applicant had resided there for a period of three months. 17. A reading of the abovesaid documents would make it clear that Anx.R1(g) inspection report dated 27.06.2016 has been prepared by the inspection official cursorily without ascertaining the proper and relevant facts. From the abovesaid documents it can be seen that the petitioner was residing in the O.P (CAT) No.124 of 2020 22 old house constructed in the 3 cents property (covered by Anx.R1(d)), at the time of the death of the employee and later because of financial hardships she was forced to sell the said property covered by Anx.R1(d) as per Ext.P6 sale deed dated 11.12.2015. The said purchaser covered by Ext.P6 dated 11.12.2015 was gracious enough to permit the petitioner to reside in the said property for a further period of 3 months, till the end of March 2016, as envisaged in Ext.P4 rent deed dated 11.12.2015, executed between the petitioner and the said purchaser covered by Ext.P6. It is thereafter that the petitioner and her two children had to reside with her close relative from April, 2016, upto May, 2017. If the inspection official had patiently asked the petitioner, who is a widow, about the various material particulars she would have been certainly able to answer the querries and she could have been even able to later produce the aforesaid documents, which are produced before this Court, now. Instead of that the inspection official has with overhaste prepared Anx.R1(g) inspection report dated 27.06.2016. Presumably this could be on account of the fact that Anx.A4 forwarded by the Union Government authorities to O.P (CAT) No.124 of 2020 23 the respondent BSNL authorities and the act of the petitioner in directly approaching the Union Government authorities may not be to the liking of the respondent BSNL authorities. It is to be noted that it is mandated in Clause 3(i) of Anx.A4 norms that it is the duty of the welfare officer of the BSNL to meet the members of the family of the deceased employee to advise them about the scheme and assist them in the necessary formalities to submit the application form, etc. 18. Hence, it can be seen that the case built up by the respondent BSNL authorities in Ext.P3 reply statement filed before the Tribunal and the findings made by the Tribunal in the impugned Ext.P1 final order that the petitioner had misrepresented that she was not having any house of her own or property at the time of death of the employer or at the time of submission of the application, etc., which appears to be based on incorrect and wrong factual aspects. In Anx.A3 application dated 17.05.2016 submitted by the petitioner for compassionate appointment she had clearly stated in paragraph No.iii(e) thereon on internal page No.2 of Anx.A3 that she has 7 cents land with house under construction and that she was then O.P (CAT) No.124 of 2020 24 residing at a relative's house, etc. Query in relation to paragraph No.iii(e) is “movable and immovable properties and annual income earned therefrom by the family”. The clear answer given by the petitioner in her own hand writing is to the effect that she had at the time of Anx.A3 application dated 17.05.2016 had owned a 7 cent land with house under construction and that she was then residing at a relative's house, etc. The 7 cent land is the one covered by Ext.P5 registered sale deed dated 09.03.2012 and the proposed house was then under construction on the basis of the loan availed by the petitioner and her husband from the Canara Bank. It is also manifest and evident from Exts.P8-P11 statutory certificates issued by the Municipal Corporation authorities as well as the certificate issued by the Indian Oil Corporation that the house was completed in the property covered by Ext.P5 in March, 2017 and the building was numbered in the end of March, 2017 and the residential certificate was issued by the Municipal Corporation on 28.06.2017 and gas connection for the new house was also availed on 17.06.2017. Hence, it would clearly show that the case of the petitioner that the house is completed O.P (CAT) No.124 of 2020 25 only by the end of March, 2017. If a proper and meticulous report was submitted by the inspection official, the abovesaid facts would have been clear like the blue sky. 19. The main contention raised by the respondent BSNL authorities in Anx.A5 rejection order dated 14.06.2018 is that she can be given only 'zero' marks for the 6[th] parameter viz., for accommodation. The reason stated therein is that she is having her own house or that she is not having any liability to pay rent. It will be pertinent to refer to the tabular column showing the weightage points for various parameters given on internal page No.2 of Anx.A5 rejection order dated 14.06.2018, which reads as follows:- (see page 24 of this paper book) |_“Sl._<br>_No._|_Item_|_Points_<br>_received_|_Remarks_| |---|---|---|---| |_1_|_Dependent's weightage_|_20_|_As per the status of_<br>_the dependents_| |_2_|_Basic Family Pension_<br>_(Pre-revised)_|_4_|_3751-4000 → 4_| |_3_|_Left Out Service_|_8_|_8years → 8_| |_4_|_Applicant's weightage_|_15_|_WIFE is the_<br>_applicant → 15_| |_5_|_Terminal Benefits_|_0_|_Above 10 lakhs → 0_| |_6_|_Accommodation_|_0_|_Own house/No_<br>_liability of paying_<br>_rent → 0_| |_7_|_Monthly_<br>_income_<br>_(negativepoints)_|_0_|_No additional_<br>_income → 0_| O.P (CAT) No.124 of 2020 26 |_8_|_Belated_<br>_requests_<br>_(negativepoints)_|_0_|_Request not belated_<br>_→ 0_| |---|---|---|---| ||_Total_|_47”_|| 20. The abovesaid parameters are dealt with in Anx.R1(b) norms dated 27.06.2007 (see pages 67-68 of this paper book). 21. The relevant portion of the said norms regarding awarding of marks for accommodation is given on internal page No.4 of Anx.R1(b) (see page No.68 of this paper book), which reads as follows:- _“6_ _**Accommodation** Max. 10 points - Family living in rented house 10 and not owning his own house -Family living in own house Nil”_ 22. It will also be pertinent to refer to the manner of awarding marks for the parameter “accommodation” as given out in the check list given on internal page No.5 of Anx.R1(b), which reads as follows:- (see page No.69 of this paper book):- _Max. 10 points_ _“6 Accommo Family living in rented house 10 dation and not owning his own houseOr Family living in own house(Tick, whichever is applicable)”_ O.P (CAT) No.124 of 2020 27 23. It is also _interalia_ stated in Anx.A6 letter dated 13.08.2018 that weightage points for accommodation can only be given if the applicant submits rent receipt, etc. 24. In the instant case, it is indisputable that going by the very case of the respondent BSNL authorities as envisaged in paragraph No.7 of Ext.P-3 reply statement (see page No.39 of this paper book) that the aspect as to whether the abovesaid norms at Anx.R1(b) are fulfilled, is to be determined as on the date of the application for compassionate appointment. 25. It is common ground that Anx.A3 application was submitted by the petitioner on 17.05.2016. As on 17.05.2016, the applicant had by then, already sold the 3 cents property along with an old house thereon, covered by Anx.R1(b) returns, as per Ext.P-6 sale deed dated 11.12.2015, after the death of the employee on 06.08.2015. Therefore, as on the date of submission of Anx.A3 application dated 17.05.2016 the petitioner was having only 7 cents of property covered by Ext.P-5 registered sale deed dated 09.03.2012. At that time the housing construction proposal was still not completed and the residential accommodation was duly completed only by March O.P (CAT) No.124 of 2020 28 2017 and the petitioner could occupy the same only by May, 2017, as can be seen from the documents produced as Exts.P8 to P11. Hence, it is beyond any dispute that as on the date of submission of Anx.A3 application dated 17.05.2016, the petitioner, who was not having residential accommodation owned by her and at that time she was living at the residence of her close relative merely on account of the graciousness shown by the said relative. Further, it is the case of the petitioner that on account of extreme financial hardships and due to closure of the loan account and the mounting expenses of the house construction, she could not afford any rent then and to take care of her family consisting of her daughter and son and hence she was constrained to live at the mercy of her close relative, who permitted her and her children to reside free of rent. In such a case, it cannot be said that the party will be eligible to be considered for compassionate appointment only if he/she lives in a rented accommodation. Ordinarily the fact that the applicant is able to live in a rented accommodation, would show that he/she is having financial capacity to atleast afford the rent. In the instant case, as she had financial hardships and on O.P (CAT) No.124 of 2020 29 account of closure of loan account by using the sale proceeds arising out of Ext.P6 sale deed as well as the retirement benefits, the petitioner had to close the housing loan account and huge amounts have been expended by her for the house under construction. Various other loans have also been closed by the petitioner as can be seen from Anx.A3, Anx.R1(e) & Ext.P7. 26. Hence, in view of the peculiar facts and circumstances of this case, any reasonable and prudent person could have only arrived at the conclusion that since a party like the applicant was forced to live at the mercy of a relative as she could not afford the rent, the insistence that the party should necessarily produce a rent receipt for getting the necessary weightage mark for accommodation, is _per se_ arbitrary and unreasonable. From Anx.R1(b) norms given on pages 68 & 69 in this paper book, it can be seen that the applicant is ineligible for weightage point for the parameter of accommodation only if the family concerned is living in his own house. This aspect of matter dealt with in internal page No.4 of Anx.Ri(b) is also reiterated in internal page No.5 of Anx.R1(b) (see pages 68 & 69 O.P (CAT) No.124 of 2020 30 of this paper book). In Serial No.6 of the top portion of the tabular column given on internal page No.5 of Anx.R1(b) deals with the parameter of accommodation and where it is stated that there are two alternatives; one that the family living in a rented house and not owning his/her own house or that the family living in his/her own house. Hence, a combined reading of internal pages 4 & 5 of Anx.R1(b) would also make it clear like day light that the party can be given zero weightage points only if the family is living in his/her own house. Therefore, in a case where the party like the applicant is not even able to afford the rent and she thus forced to live at the mercy of her relative free of rent, will not in any manner place the case of such an applicant like the petitioner, below the pedestal of a person/ an applicant who is living in a rented house, and not owning his own house. Hence, the grounds of rejection cited by the respondents in the impugned Ext.P6 that the petitioner can be given only zero marks for accommodation as she was not residing in a rented house but that in her relative's house, at the relevant time, though she was not owning a house that time, is _per se_ arbitrary and capricious, which is liable for interdiction. O.P (CAT) No.124 of 2020 31 27. Faced with the situation, the respondents would raise yet another new contention before this Court which has not been raised either in Ext.P3 reply statement filed before the Tribunal or during submissions before the Tribunal which led to the rendering of the impugned Ext.P1 final order. A new contention is now raised on behalf of the respondent BSNL authorities that the relevant date should be the date of consideration of the application and that though Anx.A3 application was submitted on 17.05.2016, the same was actually considered by the respondent BSNL authorities only on 05.04.2018, as stated in paragraph No.4 of Anx.A5 rejection order dated 14.06.2018 that it is to be treated as on 05.04.2018, the petitioner was residing in her own house, which fact is admitted by her in ground No.E of the present OP that she had been residing in her own the completed residential accommodation from May, 2017 onwards. 28. After hearing both sides, the abovesaid contention of the respondents appears to be an argument raised for the first time only to defeat the claims of the applicant at any costs. 29. The point that was raised and decided by the Apex O.P (CAT) No.124 of 2020 32 Court and by the Full Bench and also by the Division Bench of this Court in the aforestated judgments was dealing with cases where the norms for compassionate appointment has been amended subsequently to the death of the employee concerned and, the new norms had come into force and contention was raised by the applicants concerned that the previous norms which were prevalent at the time of the death of the employee alone should govern the same and that the new norms which has been subsequently made is in force at the time of consideration of the application should not be looked into at all. This contention of the applicant for compassionate appointment has been repelled by the Apex Court as well as by the Full Bench and Division Bench of this Court in the aforecited judgments, mainly on the ground that compassionate appointment cannot be seen as a source of recruitment and can at best be seen only as a concession and the said process will not amount to any vested right in view of the consideration of such application and that therefore, if the norms have been amended subsequently those norms which are in force at the time of the consideration of the application of the claims and not the norms O.P (CAT) No.124 of 2020 33 which are in force at the time of the death of the employee should be the basis for consideration. These aspects of the matter have also been clarified and declared by a three Judge Bench decision of the Apex Court recently, in the aforecited decision in _**Santhosh.N.C v. State of Karnataka & Ors.**_ [AIR 2020 (SC) 1401 = 2020 (2) KHC 371], where it has been held and declared in para No.20 thereof unequivocally that the norms prevailing on the date of consideration of application, should be the basis of consideration of the claim for compassionate appointment and not the norms which were in force at the time of the death of the employee concerned. A reading of the judgment rendered by the three Judge Bench of the Apex Court in _**Santhosh'**_ s case supra would make it clear that the norms were subsequently amended compared to the norms at the time of the death of the employee concerned and too it is in the context of those aspects that the abovesaid legal principles have been laid down. 30. In the instant case, there is no dispute either for the petitioner and for the respondent BSNL authorities that the norms prevalent in this case is the one as per Anx.A4/Anx.R1(b) O.P (CAT) No.124 of 2020 34 dated 27.06.2007 issued by the respondent BSNL authorities and the said norms at Anx.R1(b) was in force at the time of the death of the employee concerned (06.08.2015) as well as at the time of submission of Anx.A3 application dated 17.06.2016 and even as on the date of consideration by the competent authority of the BSNL on 05.04.2018. In the instant case, it is admitted by the respondent BSNL authorities in para No.7 of Ext.P3 written statement (see page No.39 of this paper book) that as per the prevailing Rules on the subject, the weightage points on the basis of the parameters in Anx.R1(b) norms is determined as on the date of the application. 31. In the instant case, it is beyond any dispute that Anx.A3 application is submitted on 17.05.2016 and as on that date the petitioner was not having any residential accommodation and she was then living in her close relative's house at her mercy and without having to pay any rent. Hence, it can be seen that the relevant factual parameters in terms of Anx.R1(b) is to be determined as on the date of the application and in the instant case the petitioner fulfills the necessary criteria for residential accommodation and hence she should O.P (CAT) No.124 of 2020 35 have been awarded 10 marks for the same and awarding of zero marks for the parameter 'accommodation' as ordered in Anx.A5 rejection order dated 14.06.2018 is illegal, arbitrary and capricious. 32. In such circumstances, it is ordered and declared that the petitioner herein is entitled to be awarded 10 marks for the parameter 'accommodation' in terms of the parameters given in Anx.A2 & Anx.R1(b) marks dated 27.06.2007 and the decision in Ext.P6 order to the limited extent it awards zero marks to the petitioner for the parameter 'accommodation' in Anx.A5 will stand quashed and set aside. Correspondingly it is ordered that the competent authority of the respondent BSNL should treat that the petitioner has secured 10 marks for the parameter 'accommodation'. The petitioner has no dispute about the markings in any of the other parameters in Anx.A5 rejection order. Hence it is ordered and declared that the respondent BSNL authorities are liable to treat that the petitioner has secured a total marks of 57 out of 100 marks as per the weightage points covered by Anx.R1(b) norms. In other words, the respondent BSNL authorities are liable to treat that O.P (CAT) No.124 of 2020 36 the applicant is eligible to be considered for compassionate appointment inasmuch as he has secured the minimum required marks of 55 marks and above in weightage points. We would make it clear that we have only interfered with the marks awarded to the applicant for the parameter 'accommodation' in the impugned Ext.P5 rejection order and the respondent BSNL authorities should proceed further by treating as if the petitioner has secured total marks of 57 out of 100 for the weightage points and that the competent authority of BSNL should consider her claim without any further delay, on merits along with the claims of the candidates considered in the meeting held on 05.04.2018 and in accordance with law and orders should be passed on her claim made out in Anx.A3 application, without any further delay, at any rate within a period of 2 months from the date of production of a certified copy of this judgment. 33. Accordingly it is ordered that the impugned Ext.P1 final order dated 25.09.2019 rendered by the Central Administrative Tribunal, Ernakulam Bench in O.A. No.1032/2018 will stand set aside. O.P (CAT) No.124 of 2020 37 34. The learned Standing Counsel appearing for the respondent BSNL authorities will ensure that certified copies of this judgment are immediately forwarded to the competent authority of the respondent for necessary information and immediate compliance. With these observations and directions, the above Original Petition (CAT) will stand finally disposed of. **Sd/ALEXANDER THOMAS, JUDGE** **Sd/T.R.RAVI, JUDGE** vgd / skk O.P (CAT) No.124 of 2020 38 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 25.09.2019 IN OA NO.1032 OF 2018 ON THE FILE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL.** **EXHIBIT P2 TRUE COPY OF OA NO.1032 OF 2018 ALONG WITH ANNEXURES.** **ANNEXURE A5 TRUE COPY OF COMMUNICATION NO. ES/9/18/2016/3 DATED 14.06.2018 ISSUED BY THE 4TH RESPONDENT. ANNEXURE A6 TRUE COPY OF CLARIFICATION NO. 27318/2013/CGA/ESTT-IV DATED 13.08.2018 ISSUED BY THE 1ST RESPONDENT. ANNEXURE A1 TRUE COPY OF REPRESENTATION SUBMITTED BY THE APPLICANT DATED 06.01.2016. ANNEXURE A2 TRUE COPY OF COMMUNICATION NO.STA/242-2-CGAGENL/2011-16/COL.II/60 DATED 11.01.2016 ISSUED BY THE 2ND RESPONDENT.** **ANNEXURE A3 TRUE COPY OF APPLICATION DATED 17.05.2016 SUBMITTED BY THE APPLICANT.** **ANNEXUREA A4 TRUE COPY OF LETTER NO.273-18/2005-PERS.IV DATED 27.06.2007.** **EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS 2 & 4 ALONG WITH ANNEXURES.** **ANNEXURE R1(A) TRUE COPY OF THE INSTRUCTIONS ISSUED BY THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE AND PENSION, DEPARTMENT OF PERSONNEL & TRAINING, GOVERNMENT OF INDIA UNDER LETTER NO.14014/6/94-ESTT (D) DATED 9TH OCTOBER 1998.** **ANNEXURE R1(B) TRUE COPY OF THE LETTER NO.273-18/2005PERS.IV DATED 27.06.2007.** O.P (CAT) No.124 of 2020 39 - **ANNEXURE R1(C) TRUE COPY OF LETTER NO.268-79/2002 PERS.IV DATED 27.12.2006.** **ANNEXURE R1(D) TRUE COPY OF THE ANNUAL RETURN OF THE IMMOVABLE PROPERTY SUBMITTED BY THE APPLICANT'S HUSBAND.** - **ANNEXURE R1(E) TRUE COPY OF THE STATEMENT FROM SENIOR MANAGER, CANARA BANK, THRISSUR.** - **ANNEXURE R1(F) TRUE COPY OF THE CLARIFICATION LETTER NO. 268-GEN.CORR/2010-PERS.IV DATED 13.12.2004.** - **ANNEXURE R1(G) TRUE COPY OF THE REPORT OF WELFARE OFFICER DATED 27.06.2016.** - **EXHIBIT P4 TRUE COPY OF RENT DEED DATED 11.12.2015.** - **EXHIBIT P5 TRUE COPY OF DOCUMENT NO.963/2012 OF SRO AYYANTHOLE, THRISSUR DATED 09.03.2012** - **EXHIBIT P6 TRUE COPY OF SALE DEED NO.4627/2015 OF SRO, THRISSUR DATED 11.12.2015** - **EXHIBIT P7 TRUE COPY OF LETTER ISSUED BY THE BRANCH MANAGER, CANARA BANK, WEST PALACE BRANCH, THRISSUR DATED 19.01.2021.** - **EXHIBIT P8 TRUE COPY OF OCCUPANCY CERTIFICATE DATED 10.03.2017 ISSUED TO THE PETITIONER BY THE THRISSUR MUNICIPAL CORPORATION.** - **EXHIBIT P9 TRUE COPY OF TAX RECEIPT DATED 25.03.2017 ISSUED BY THE THRISSUR MUNICIPAL CORPORATION.** - **EXHIBIT P10 TRUE COPY OF TRUE COPY OF RESIDENTIAL CERTIFICATE DATED 28.06.2017 ISSUED BY THE THRISSUR MUNICIPAL CORPORATION** - **EXHIBIT P11 TRUE COPY OF CERTIFICATE ISSUING GAS CONNECTION FOR NEW HOUSE**