AJAY KUMAR vs M/O DEFENCE on 30 December 2020

O R D E R

HON’BLE MS. AJANTA DAYALAN, MEMBER (A)

1. The present Original Application (O.A) has been filed by the applicant Ajay Kumar seeking quashing of the order dated 16.11.2016 (Annexure A-1) rejecting his claim for grant of compassionate appointment. Recommendation/Proceedings dated 21.10.2016 [Annexure A-2 (Colly)] of the Selection Committee (in fact, it is Board of Officers meeting proceedings) is also sought to be quashed. Besides, the applicant has sought quashing of the appointment orders of the respondents No. 5 to 8, who have been offered compassionate appointment, on the allegation that they were less meritorious than the applicant.

2. The father of the applicant Balbir Chand was working as Farm hand (Group „D‟) in Military Farm, Ferozpur Cantt, Punjab. He died in harness on 15.10.2014 and left behind his wife, 4 daughters and one son, who is the applicant. At the time of death of Balbir Chand, the applicant‟s four sisters were pursuing their studies. There was no earning member and the family was in penury. The mother of the applicant submitted application dated 30.12.2014 (Annexure A-4) for grant of compassionate appointment to the applicant. The applicant also submitted an application for compassionate appointment in April 2015 (Annexure A-6), through proper channel. The case was forwarded by the Respondent No.4 to Respondent No.3 on 19th June, 2015

(Annexure A-7). However, no action was taken by the respondents. As such, O.A.No. 060/1072/2015 was filed by the applicant. This was disposed of vide order dated 26.11.2015 (Annexure A-8) directing the respondents to consider the case of the applicant within six months. Requisite information sought by the Department was furnished by the applicant vide letter dated 14.3.2016 (Annexure A-10). As there was no further development in the case, the applicant filed Execution Application No. 060/833/2016 dated 10.7.2016. During proceedings of this Execution Application, the impugned order dated 16.11.2016 (Annexure A-1) was passed by the respondents rejecting the claim of the applicant. This order, inter-alia, states that there was only one vacancy for the post of Lower Division Clerk (LDC) and 21 vacancies for the post of erstwhile Group „D‟ available in the Department for providing compassionate appointment. Out of total 207 applications for the post of Group „D‟ and 87 applications for the post of LDC, the applicant stood at 7th position for the post of LDC and 28th position for the post of Group „D‟. As such, he could not be considered for appointment and his name will be considered as and when vacancies for the compassionate appointment arise.

3. The applicant tried to obtain information of the marks awarded to other candidates, through RTI application dated 28.11.2016 (Annexure A-11 Colly).

However, the same was denied vide order dated 8.12.2016 (Annexure A-11 Colly), stating that the information includes „commercial confidence, trade secrets‟ and hence cannot be disclosed. On appeal, the Central Information Commissioner vide order dated 4.9.2017 gave limited information relating to assessment of the applicant alone (Annexure A-11 Colly). Meanwhile, the Military Farms were ordered to be closed in July 2017 and even existing staff was to be posted initially in other Military Farms and later posted out of the Department. As such, there was no hope for the applicant to be appointed on compassionate ground. The applicant filed CWP No. 28769/2017 challenging the orders dated 8.12.2016 and 4.9.2017 of CIC declining the information under RTI Act. Notice of motion was issued. However, no information has been provided to the applicant during pendency of the Writ Petition. He has obtained certain information at his own level through his own efforts.

4. This information relates to assessment matrix of the private respondents namely Kuldeep Pandey (Respondent No.5), Davinder Singh (Respondent No.6), Mukesh (Respondent No.7) and Sikender Singh (Respondent No.8) and other applicants. The counsel for the applicant claimed that these persons have been wrongly awarded marks under the head “Left Over Service”, which are liable to be reduced. In case these marks are correctly given to the applicant and other candidates, the applicant will fall in the first 21 on merit and will need to be given appointment, being higher in merit than the private respondents.

5. The learned counsel for the applicant argued that Left Over Service of deceased employee in case of private respondents and some other candidates does not match with the age of the candidates themselves or their siblings. He stated that for instance in case of Kuldeep Pandey (Respondent No.5), the left over service is shown as more than 18 years, whereas one daughter is shown as aged 29. These figures do not match as in that case the eldest child would have been born to her father at the age of about 10 years. Similar position was in other cases as well. On being pointed out that Left over Service is worked out at the time of retirement, whereas age of the wards could be taken at the time of consideration of the case by the Board of Officers, the learned counsel for the applicant fairly accepted this.

6. The learned counsel then stated that his main argument is that compassionate appointment has been given to many candidates where death of the government employee took place in 2004 or even earlier. He stated that in the Scheme for Compassionate appointment, specific time limit of 3 years was given vide instructions dated 5.5.2003. It was only later that limit was removed vide instructions dated 26.07.2012 by Government of

India, Ministry of Personnel, Pubic Grievances and Pensions. Still, the Compassionate Appointment Scheme itself provides that the object of the Scheme is to give relief to the family of the government servant who dies in harness or who is retired on medical grounds leaving the family in penury and without any means of the livelihood, so as to relieve the family from financial destitution and to help it get over the emergency. He stated that it is not understood as to how compassionate appointment can be granted after 10 years of death as there is no question of emergency at that point of time. If the family has somehow managed for the last so many years, the condition of emergency or financial destitution does not arise.

7. On the other hand, the learned counsel for the applicant stated that the applicant is the sole male member in the family, his mother and four sisters being dependent upon him. He also stated that one of the sisters is mentally not normal and other sisters need to be married. As such, the applicant has great financial liability and cannot discharge his obligations to the family without a regular appointment. There is no other source of income and none of the family members is employed.

8. He further submitted that even though the applicant has been ignored, others including the private respondents have been appointed even though in their cases, death of the government employee occurred more than 10 years prior to grant of appointment to them. For instance, he quoted that in the case of Kuldeep Pandey (Respondent No.5), date of death is 22.12.2002, in the case of Davinder Singh (Respondent No.6), date of death is 5.6.2004, in the case of Mukesh (Respondent no.7) date of death is 16.2.2000 and in case of Sikender Singh (Respondent no. 8) date of death is 15.10.1997. Thus, acceptance of claim of these private respondents ignoring the claim of the applicant despite his liabilities and there being no other source of earning, is not justified and this action of the official respondents be quashed and the applicant be granted appointed on compassionate ground.

9. From the side of the respondents, the learned counsel stated that first of all, the O.A. is barred by time and secondly position has already been explained in order dated 16.11.2016 that as many as 207 applicants were assessed for the post of Group „D‟ and 87 applicants were assessed for the post of LDC. This was against only a single vacancy of LDC and 21 posts of erstwhile Group „D‟. The marks were awarded to each candidate as per the 100 point scale circulated by the Ministry of Defence vide O.M. dated 14.5.2010 (Annexure R-1). There was no mistake in the marking of left over service or otherwise. There was no favour or tempering of record. As the applicant stood lower in merit vis-à-vis other

applicants, as per assessment of the Board of Officers, he could not be given compassionate appointment. The applicant secured only 71 marks in Group „D‟ category which is less than the last candidate Smt. Ambika Jha, who has secured 73 merit points based on 100 point scale. All the private respondents secured 74 marks which are above the last candidate. As such there is no illegality in appointment given to the private respondents. He also stated that Military Farms have now to be closed as per decision of 2017 and there is no vacancy there.

10. I have heard the learned counsel for opposing sides and have also given my thoughtful consideration to the matter.

11. The applicant has filed an M.A.No.060/973/2018 for condonation of delay of 397 days in filing the Original Application, to which respondents have also filed a reply. Considering the sequence of events and the fact that the applicant has continuously been pursuing the case whether in the courts or with the department for obtaining information, I am inclined to allow the M.A. and condone the delay in filing the O.A.

12. Coming to the merits of the case, first of all, the plea raised by the learned counsel for the applicant that there is mismatch in the remaining service and the age of the wards of the deceased employees, is not sustainable. The remaining service is obviously worked out with reference to the date of superannuation of the employee while the age of the wards has been taken with reference to the period when the case was being considered by the Board of Officers. The learned counsel for the applicant has fairly accepted this fact. Thus, this plea is not accepted.

13. I also find that the applicant has annexed the minutes of the relevant meeting of Board of Officers with the O.A. even though the same was not supplied to him by the respondent department. However, neither the respondent department has raised any doubt about its authenticity or genuineness or about the source of such information, either in the O.A. or during arguments. As such, I find no reason to doubt the genuineness or authenticity of these minutes. Therefore, I take it as copy of the original document and base my decision on this.

14. The main ground of the applicant‟s counsel is that the private respondents have been given appointment despite the death of the government servant in their cases taking place between 1997 to 2004, that is more than 10 years prior to the consideration of their cases by the Board of Officers in December 2016. He stated that this is contrary to the Scheme of Compassionate Appointment which itself states that the Scheme is to help the family of the government servant to get over emergency. Earlier, the time limit for consideration of cases for grant of compassionate appointment was 3 years as per O.M. dated 5.5.2003. This limit was withdrawn in 2012 vide F.No.14014/3/2011-Estt.(D) dated 26.7.2012. Still, the basic aim of the Scheme remains the same and normally 5 years time limit is taken for consideration of the case to be brought under the Compassionate Appointment Scheme. Even the Apex Court in various judgments has taken such view. Despite this, the private respondents have been granted appointment even after 12 to 19 years of death of the government employee. This action is not strictly in line with the letter and spirit of the Scheme.

15. I also find that in the meeting of Board of Officers held on 21.10.2016, total of 237 cases of compassionate appointment were considered. A large number of these cases pertain to deaths that took place prior to the year 2000. In the minutes of the meeting while noting this fact, the Board itself recorded as follows:- “8. While scrutinizing the cases, it was observed that a large number of applications were 10-15 years old. It was also felt that such applications have never been assessed before by any Board since no Board was constituted/vacancies available since the receipt of these applications.

9. In the above circumstances it was difficult to assess the merit of such old cases prior to 6th CPC with the latest cases in a uniform manner”.

16. In this regard two issues arise. Firstly, the fact of no Board of Officers being constituted for consideration of cases of compassionate appointment for over 15 years is itself very serious and indicates callous attitude of the authorities towards families of their own employees even in cases of death. I, therefore, direct the respondents to ensure that such lapse does not happen in future and the cases of compassionate appointment are considered within a reasonable time limit. I am not saying that in all the cases, appointment is to be given. I am only expecting the cases to be considered within a reasonable time.

17. The other issue that arises is that the Board of Officers did consider very old cases. However, after going through the minutes of the meeting of Board of Officers, I am clear that the Board of Officers considered the cases purely based on 100 point system and in its assessment, it did not take into consideration the age of the case. Hence, the crucial factor and object of the Scheme – that is „to relieve the family of the government servant concerned from financial destitution and to help it get over the emergency‟ was completely ignored,. To this extent, the decision of the Board of Officers got vitiated. In essence, the assessment by the Board of Officers totally ignores the fact that in some cases considered by them, the emergency situation is already over.

18. In this perspective, the present applicant before us where death occurred in 2014 and to a great extent, such emergency situation still prevailed, was adversely affected due to this aberration. After going through the minutes of the meeting of Board of Officers, I find that as many as over 20 cases were considered by the Board of Officers where death occurred in year 2000 or even earlier – that is over 15 years before consideration of the cases. Further, in as many as 15 cases, the death occurred more than 10 years back but those candidates were assessed at higher merit than the present applicant before us. Reference may be made to S.No. 4,6, 8, 9, 15, 17, 44, 65, 81, 91, 93, 106, 118, 169 and 207. All these cases cannot be said to be cases where children were minor at the time of death of the government servant. This is clear from the age of the children given in minutes itself. Even otherwise, the widow could always apply for compassionate appointment. Thus, had their cases been considered taking into account the date of death and the purpose of the scheme for Compassionate Appointment, the merit of the present applicant would have been higher. Presently, he is at merit point 28 against 21 vacancies for the post of erstwhile Group „D‟. If these 15 cases where higher assessment is given to other applicants totally ignoring the fact that death in those cases occurred more than 10 years before consideration of the cases by the Board, the applicant would have been in select list.

19. Besides, it is also noted that the applicant has four sisters and a mother to look after. One of the sisters is mentally not normal. The applicant is the only brother and the only male member in the family and has to look after the sisters and his mother who has supported the case for his appointment. There is no earning member in the family and there is no other source of income except the meager family pension of Rs.4,758/-p.m. plus allowances thereon.

20. In view of the above and particularly in view of the fact that the private respondents and many other candidates have been granted appointment even going beyond the scheme of the compassionate appointment, thereby adversely affecting in the claim of the applicant, I find it proper and justified to order that the official respondents may grant appointment to the applicant against one post of erstwhile Group „D‟ post. Ordered accordingly. The needful be done within a period of three months from the date of receipt of a certified copy of this order. Appointment granted to private respondents is not being quashed as it will involve undue hardship to them. (AJANTA DAYALAN) MEMBER (A) Place: Chandigarh Dated: 30.12.2020

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