Syam Kumar B v. Bharat Sanchar Nigam Limited (BSNL)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. TUESDAY, THE 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939 OP (CAT).No. 963 of 2011 (S) ----------------------------- AGAINST THE ORDER IN OA 18/2010 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 22.10.2010 ## PETITIONERS/PETITIONERS: ------------------------- 1. THE CHAIRMAN-CUM-MANAGING DIRECTOR, BHARAT SANCHAR NIGAM LIMITED, NEW DELHI. 2. THE CHIEF GENERAL MANAGER, - BHARAT SANCHAR NIGAM LIMITED(BSNL),, KERALA TELECOMMUNICATIONS,, THIRUVANANTHAPURAM 695 033. 3. THE DEPUTY GENERAL MANAGER(HRD), OFFICE OF THE CHIEF GENERAL MANAGER,, BHARAT SANCHAR NIGAM LIMITED, KERALA, TELECOMMUNICATIONS, THIRUVANANTHAPURAM 695 033. BY ADV. SMT.I.SHEELA DEVI,SC,BSNL(BHARAT SANCHA RESPONDENT: - -------------- SYAM KUMAR.B, AGED 20 YEARS, S/O.LATE K.BABU, 'SYAM NIVAS', KODANTHURUTH,, KUTHIATHODE PO, CHERTHALA 688 533. R,R1 BY ADV. SRI.T.C.GOVINDA SWAMY R,R1 BY ADV. SRI.G.SHYAM RAJ THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 05-06-2017, THE COURT ON 20.6.2017 DELIVERED THE FOLLOWING: ## APPENDIX: PETITIONERS' EXTS: P1: TRUE COPY OF THE O.A. NO. 18/2010 DATED 22.10.2010. P2: TRUE COPY OF REPLY STATEMENT ALONG WITH ANNEXURE FILED BY THE RESPONDENTS. P3: A TRUE COPY OF THE REJOINDER ALONG WITH ANNEXUREE SUBMITTD BY THE RESPONDENT BEFORE CAT ERNAKULAM BENCH. P4: A TRUE COPY OF THE ORDER IN O.A. NO. 18/2010 DATED 22.10.2010. P5: A TRUE COPY OF THE REJECTION LETTER DATED 9.10.2009 FORWARDED BY THE 3RD PETITIONER TO THE 1ST RESPONDENT. RESPONDENTS; EXTS: NIL ks. True copy P.s. To Judge ## **P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.** **==============================** ## **O.P. (CAT)No. 963 OF 2011** ## **============================== Dated this the 20[th] day of June, 2017** ## **JUDGMENT** ## **Shircy, V. J.** The respondent's father was an employee of the petitioner - Bharat Sanchar Nigam Ltd (for short BSNL). On the death of the respondent's father while in service, he submitted an application requesting for his appointment on compassionate grounds. The same was rejected by the petitioner under the newly introduced Weightage Point System. Feeling aggrieved, the respondent filed O.A.No.18 of 2010 before the Tribunal (CAT, Ernakulam Bench). By an order dated 22.10.2010, the Tribunal set aside the order of the petitioner and directed to consider his application under the scheme prevalent at time of the death of the employee OPCAT 963/2011 2 concerned. The said order is under challenge in this petition. 2. Brief facts of this petition are as under: The father of the respondent was as a Telecom Mechanic in BSNL. He expired on 17.9.2005 while in service. At that point of time, the respondent was a minor. After attaining majority on 20.01.09 the respondent submitted an application before BSNL requesting to provide employment on compassionate grounds. It was rejected by the BSNL holding that he was not eligible for appointment on compassionate grounds as per the guidelines of the new policy scheme introduced in the year 2007. Challenging the rejection of the application submitted by the respondent, O.A.No.18/2010 was filed by him before the Tribunal with the following payers: _“ i) call for the records leading to the issue of Annexure A1 and quash the same;_ _ii) declare that the applicant is entitled to be considered for an appointment on compassionate grounds as per the scheme which was in force as on the date of demise of the applicant's father, i.e. 17.09.05 and direct the respondents to consider the_ OPCAT 963/2011 3 _case of the applicant accordingly and direct further to grant all consequential benefits thereof forthwith;_ _iii) Award costs of and incidental to this application.”_ 3. The reliefs sought for were resisted by the BSNL contending that the 'Weightage Point System' was introduced in the year 2007 to bring uniformity in assessing the indigent condition of the family for offering appointment on compassionate grounds. The scheme prevailing on the date of the death of the employee was not the criteria to determine the eligibility for appointment on compassionate grounds but it was the date of consideration of the application of the dependent. The application was submitted by him after the new scheme was introduced and so the assessment was made as per the new scheme and as it was found that he was not having the minimum requirements stipulated therein, the application was rejected . OPCAT 963/2011 4 4. The Tribunal discarding the contentions raised by the petitioner, allowed the application and quashed the order of BSNL under challenge as follows: _''The order Annexure A-1 dated 09.10.2009 is quashed and set aside. The respondents are directed to consider the claim of the applicant for appointment on compassionate ground as per the scheme which was in force as on the date of demise of the applicant's father and pass suitable order within a period of three months from the date of receipt of a copy of this order. No costs.''_ 5. We heard the learned counsel for BSNL and the learned counsel for the respondent. 6. The father of the respondent expired on 17.9.2005 while he was in service. The respondent was a minor at the time of the death of his father. According to him though a representation for his appointment was submitted by his mother immediately, she was directed to submit the same once he attains the age of majority. (No record is available to substantiate that such an application was preferred by OPCAT 963/2011 5 the mother of the respondent) On 20.1.2009 the respondent submitted an application claiming employment under the compassionate appointment scheme. But by Ext P5 dated 9.10.2009, it was informed by the BSNL that his application was rejected as he was not coming within the purview of the newly introduced policy guidelines for appointment under the compassionate grounds. The learned counsel for the respondent would argue that as the father of the respondent expired on 17.9.2005 before introduction of the new policy guidelines by the BSNL in the year 2007, the rejection of his application is not justifiable. Per contra, the learned counsel for the BSNL would contend that as the application for appointment was submitted by the respondent after introduction of the Weightage Point System, his claim for appointment on compassionate ground was assessed as per the guidelines of the new system and his net point was found less than 55 and hence found not eligible for appointment. The learned counsel for OPCAT 963/2011 6 BSNL further contends that the verdict of the Tribunal in T.A. 128/2008 in favour of the applicant therein for appointment has not become final as appeal is pending before the Apex Court. Further contention of the BSNL is that all the terminal benefits due to the respondent's family had been disbursed and so on that ground also the respondent is not entitled to claim an appointment on compassionate grounds. So, the rejection of the claim for appointment of the respondent is fully justified, is the stand taken by the BSNL. 7. The learned counsel for the respondent has placed reliance 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 [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 OPCAT 963/2011 7 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_ OPCAT 963/2011 8 _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 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**_ OPCAT 963/2011 9 _**(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 OPCAT 963/2011 10 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)**_ 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 OPCAT 963/2011 11 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 OPCAT 963/2011 12 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 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. In the above facts and circumstances, we find that the respondent is not entitled for compassionate OPCAT 963/2011 13 appointment and so the Tribunal is not justified in quashing Ext.P5 or in directing reconsideration of the case of the respondent. We therefore allow this petition as follows: i) Ext P4 order of the Tribunal under challenge is set aside . ii) Ext P5 order(Annexure A-1) of the BSNL dated 9.10.2009 is restored. ## **Sd/-** **P.R. RAMACHANDRA MENON JUDGE** ## **Sd/-** **SHIRCY V. JUDGE** **ks.** **True copy** ## **P.S. To Judge**