The Flag Officer Commanding in Chief, Headquarters Southern Naval Command, Naval Base, Kochi-682004 and Union of India v Rejaneesh R Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 20TH DAY OF NOVEMBER 2019 / 29TH KARTHIKA, 1941** **OP (CAT).No.54 OF 2019** **AGAINST THE ORDER IN OA NO.160/2017 DATED 16-10-2018 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS:** **1 THE FLAG OFFICER COMMANDING IN CHIEF, HEAD QUARTERS SOUTHERN NAVAL COMMAND, NAVAL BASE, KOCHI-682004.** **2 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE (NAVY) INTEGRATED HEAD QUARTERS, SENA BHAVAN, NEW DELHI-110011.** **BY ADV. SRI.T.V.VINU, CGC** ## **RESPONDENT/APPLICANT:** **REJANEESH R NAIR S/O.K.M.RADHAKRISHNAN (LATE), KALIVEETTIL HOUSE, KOODAPUZHA, CHALAKUDY, THRISSUR-680037.** **R1 BY ADV. SRI.P.V.MOHANAN** **THIS OP(CAT) HAVING BEEN FINALLY HEARD ON 20.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (CAT).No.54 OF 2019 2 ## _**C.R.**_ ## **JUDGMENT** ## **K. Vinod Chandran, J.** **The challenge is against the direction to consider the applicant before the Tribunal for compassionate appointment without looking into the terminal benefits paid to the family of the deceased employee. Sri.T.V. Vinu, the learned Central Government Counsel appearing for the Union of India, submits that there is a specific scheme under which compassionate appointments are made, which is produced as Annexure R1 & R2, which would have to be violated, to comply with the directions of the Tribunal.** **2. The scheme requires family pension, terminal benefits, monthly income of earning members as also market value of the movable and immovable properties to be taken into account. There is a** OP (CAT).No.54 OF 2019 3 **specific procedure by which weightage points are awarded to the family of a deceased employee in accordance with the points assigned specifically as per the Scheme. The applicants are then ranked according to their indigence in the descending order. The families, who acquire a higher weightage point by reason of graver indigent circumstances, would be first appointed, subject only to availability of vacancies.** **3. The applicant had obtained 36 points as weightage as has been specifically indicated in the reply statement. It is also submitted that the applicant would remain in the list and when the applicant comes higher up in the list so as to fall within the number of vacancies set apart for compassionate appointment, he would be granted such appointment. But there is no guarantee since the list is updated by fresh applicants who again are placed in priority as per the weightage points.** OP (CAT).No.54 OF 2019 4 **4. The learned CGC also relies on** _**State of Himachal Pradesh & Another v. Shashi Kumar [2019 (3) SCC 653]**_ **to drive home the point as to there existing no right as such for compassionate appointment; the same being an exemption to the general rule for appointment to any public post, which could only be in accordance with Articles 14 and 16 of the Constitution of India.** **5. Sri.P.V. Mohanan, the learned Counsel appearing for the respondent/applicant, takes us to the reply statement to point out the discrepancies in the weightage granted. It is the submission of the learned Counsel that in fact there were very many liabilities left behind by the deceased, which was not at all taken into consideration. It is also submitted that there is none in the family having any income and hence there should have been more weightage given on that aspect. It is urged that there is an irregularity in considering the total** OP (CAT).No.54 OF 2019 5 **value of an immovable property, which is in joint ownership of three, over which the applicant has only a one-third share. The learned Counsel relies on two decisions of Division Benches of this Court, one in** _**State Bank of India & Another v. Aneesh Antony**_ **[W.A. No.757 of 2013 dated 10.06.2013** _**]**_ **and the other in** _**Canara Bank v. Ajithkumar G.K.**_ **[W.A. No.1364 of 2016 dated 04.11.2019]; both authored by one of us [KVC,J].** **6. As was pointed out from the scheme produced as Annexure R1 & R2, it is clear that the scheme provides for consideration of the terminal benefits, family pension and the value of property of the indigent family, who seeks compassionate appointment. We notice the decision in** _**Canara Bank**_ **by this very Bench, wherein we had noticed the scheme framed by the State Bank of India, which was the subject of consideration in** _**G.M. (D&PB) v. Kunti Tiwary [(2004) 7 SCC 271]**_ **. Therein, as per the** OP (CAT).No.54 OF 2019 6 **recommendation of the Indian Banks' Association, the SBI had framed a scheme where the terminal benefits entitled to the bereaved family of an employee, who dies in harness, was a relevant consideration in granting compassionate appointment to one of the members of the bereaved family. We in fact noticed the distinction in the scheme of the Canara Bank, which did not have such a stipulation. It is hence we directed the Canara Bank in that case to grant a compassionate appointment, without looking at the terminal benefits.** **7. In** _**State Bank of India & Another v. Aneesh Antony,**_ **the Division Bench noticed the contention raised of liabilities left behind by the deceased to direct a consideration by the Bank to see whether the compassionate appointment could be granted on grounds of the indigent condition of the family. We immediately observe that it was an individual case coming up for consideration and not** OP (CAT).No.54 OF 2019 7 **where the comparative merit or rather indigence of a number of dependent families had arisen under the Scheme.** **8. We depart from the above finding in** _**State Bank of India & Another v. Aneesh Antony**_ **only for the reason that here the consideration is not of one individual in isolation to others. There are a number of applications under the compassionate scheme, especially given the nature of the employer herein, who maintains a live list of dependant families. The live list of applicants are ranked in accordance to their weightage, based on their indigence, to which list constant additions are made. As per the subject scheme, with which we are considered in this case, there is a specific prohibition against granting appointments beyond a percentage/quota as fixed for compassionate appointment alone. This again is in consonance with the principles laid down by the Hon'ble Supreme** OP (CAT).No.54 OF 2019 8 **Court as to compassionate appointment being an exception to the general rule for appointment in public office, which otherwise has to be in accordance with Articles 14 and 16 of the Constitution of India.** **9. The arguments addressed for the applicant has to be considered with this in our mind. There can be no consideration of the liabilities left behind by a deceased person, especially since it is not a relevant consideration as per the scheme. We are also of the opinion that the liabilities are not relevant, since then it would be giving a premium to a person, who, in his lifetime, had indiscriminately created liabilities. Further, we cannot, at this point, make any re-assessment for reason of the details of the other families not being with us. We say this quite conscious of the fact that even otherwise in a judicial review, we are not competent to go into such intricacies, where the authorities** OP (CAT).No.54 OF 2019 9 **had framed a reasonable procedure and it is not for us to import our own reasonableness to substitute a reasonable approach made by the authority.** **10. The contention that the immovable properties are owned jointly by the three members of the family, is not at all significant, since the appointment on compassionate ground is to mitigate the misery, to which the family is left and there is no requirement for considering the individual share of the member, who is granted such appointment. We would expect the member of the family, who is granted such appointment, to look after the family, which is also the intention behind the scheme. As stated by the learned CGC, an undertaking is also required to be given by the member, who is given employment, to look after the bereaved family, which is evident from the declaration in Annexures A2/A3 produced along with the original application. As for the points awarded for other income at best the** OP (CAT).No.54 OF 2019 10 **revision would be of one point, since the maximum available for that is only 5. The income adopted is also marginal given the fact that the applicant is a major male member of the family.** **11. On the above reasoning, we set aside the order of the Tribunal since a blanket direction to reconsider the case of the applicant for compassionate appointment would go against the specific terms of the scheme under which the application has been made and would also result in more indigent families being bypassed. The Supreme Court decisions relied on by the Tribunal was also in the context of the specific schemes dealt with. We garner support from** _**State of H.P. v. Parkash Chand [(2019) 4 SCC 285]**_ **, where interference was caused to the exercise of judicial review under Article 226 of the Constitution, on the ground that it was not open to the High court to re-write the terms of the policy. The impugned order of the** OP (CAT).No.54 OF 2019 11 **Tribunal is hence set aside and the original petition is allowed. We make it clear that this does not in any way affect the future prospects of the petitioner, but, however, on the specific terms of the scheme and subject to his rank coming within the number of vacancies filled up by the petitioners in future. The parties to suffer their respective costs.** **Sd/-** **K. VINOD CHANDRAN, JUDGE.** **Sd/-** ## **V.G. ARUN, JUDGE.** **sp/20/11/19** //True Copy// P.A. To Judge OP (CAT).No.54 OF 2019 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE AFFIDAVIT DATED 15/12/2014. ANNEXURE A2 TRUE COPY OF THE APPLICATION DATED 21/02/2015. ANNEXURE A3 TRUE COPY OF THE LETTER DATED 10/07/2015. ANNEXURE A4 TRUE COPY OF THE LETTER DATED 09/07/2015. ANNEXURE A5 TRUE COPY OF THE REPORT TAHSILDAR CHALAKUDY SUBMITTED TO DISTRICT COLLECTOR DATED 27/06/2015. ANNEXURE A6 TRUE COPY OF THE PROCEEDINGS NO.PIO/130/16/JKM/11(12) DATED 09/12/2016. ANNEXURE R1 TRUE COPY OF THE GOI, MOD F.NO.19(3/2009/D(LAB) DATED 22 JAN. 2010. ANNEXURE R2 TRUE COPY OF THE GOI, MOD F.NO.19(3/2009/D(LAB) DATED 14 MAY, 2010. ANNEXURE A7 TRUE COPIES OF THE MEDICAL CERTIFICATES AND MEDICAL REPORTS RELATING TO THE TREATMENT OF WIDOWED WIFE. ANNEXURE A8 TRUE COPIES OF THE DETAILS OF MEDICAL TREATMENT UNDERGONE BY THE DECEASED K.M. RADHAKRISHNAN. EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION IN O.A.NO.180/00160/2017 DATED 12.02.2017 FILED BY THE RESPONDENT. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.180/00160/2017,DATED 19.02.2018 FILED BY THE PETITIONERS.** OP (CAT).No.54 OF 2019 13 |**EXHIBIT P3**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**REJOINDER**<br>**IN**| |---|---| ||**O.A.NO.180/00160/2017,DATED**<br>**13.05.2018**| ||**FILED BY THE RESPONDENT.**| |**EXHIBIT P4**|**TRUE COPY OF THE ADDITIONAL REPLY STATEMENT**| ||**IN O.A.NO180/00160/2017,DATED 31.08.2018**| ||**FILED BY THE PETITIONERS.**| |**EXHIBIT P5**|**TRUE COPY OF THE ORDER IN ORIGINAL**| ||**APPLICATION**<br>**NO.180/00160/2017**<br>**,DATED**| ||**16.10.2018**<br>**ISSUED**<br>**BY**<br>**THE**<br>**CENTRAL**| ||**ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH.**| |**EXHIBIT P6**|**TRUE COPY OF THE M.A. NO.957/2019 IN OA**| ||**NO.180/00160/2017 DATED 29/09/2019.**| |**EXHIBIT P6 (MA1)**|**TRUE COPY OF THE ORDER IN OA NO.160/2017**| ||**DATED 16/10/2018 OF THE HON'BLE CENTRAL**| ||**ADMINISTRATIVE TRIBUNAL, ERNAKULAM.**| |**RESPONDENT'S/S EXHIBITS:**|| |**EXHIBIT R1(a):**|**TRUE COPY OF THE CERTIFICATE DATED**| ||**12/11/2019.**| |**EXHIBIT R1(b):**|**TRUE COPY OF THE CERTIFICATE DATED**| ||**12/11/2019.**| |**EXHIBIT R1(c):**|**TRUE COPY OF THE MEDICAL REPORT DATED**| ||**12/11/2019.**|