Mukesh Kumar Vs. Union of India Through Defence Secretary, Ministry of Defence, Govt. of India, New Delhi and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/944753
CourtCentral Administrative Tribunal CAT Chandigarh
Decided OnOct-18-2011
Case NumberO.A.No.918-JK-2010
JudgeTHE HONOURABLE MRS. SHYAMA DOGRA, MEMBER (J) & THE HONOURABLE MRS. PROMILLA ISSAR, MEMBER (A)
AppellantMukesh Kumar
RespondentUnion of India Through Defence Secretary, Ministry of Defence, Govt. of India, New Delhi and Others
Excerpt:
oral: shyama dogra, member (j) 1. the facts, as projected by the applicant, are that his father who was working as electrician under the respondents died in harness on 1.3.2003 leaving the family in penury. he left behind his wife, two sons including the applicant and two daughters. the petitioner was the eldest son and was a minor at that point of time. on becoming a major, he submitted a representation dated nil for appointment on compassionate grounds stating that the entire family was dependent upon the income of the deceased. the younger brothers/sisters of the applicant wanted to pursue their studies. the family is in dire need of financial support. however, the case of the applicant was rejected vide order dated 1.6.2010 (annexure a-2) on the ground that as per existing rules, case for compassionate appointment are considered within the period of one year from the date of death of a government employee and as such case of the applicant cannot be considered as it was more than seven years old. 2. the applicant submits that his mother again submitted a representation dated 15.6.2010, which has again been rejected by respondent no. 6 vide order dated 23.6.2010 (annexure a-3) on the ground that as per instructions dated 5.5.2003, case for compassionate appointment of a person has to be initiated within one year subject to relative merits and availability of vacancy. this period in exceptional circumstances, can be extended upto maximum of three years. the case of the applicant being more than 7 years old cannot be considered. the applicant has, therefore, prayed for quashing of the impugned orders, annexure a-1 and a-2 and for directing the respondents to offer appointment to him against a group d post against 5% quota. both the orders have been passed by the garrison engineer, 862 engineers works section c/o 56 apo (respondent no. 6) whereas under clause 8 of the same, the belated cases are required to be sent upto the secretary or ministry level for consideration. 3. the respondents have filed a reply reiterating the stand taken by them in the impugned orders. 4. we have heard the learned counsel for the parties and perused the material on the file. 5. from the material on the file including the scheme for compassionate appointment, annexure a-4, we find that there is a specific provision for considering belated requests for compassionate appointment in para 8, which being relevant is reproduced as under : “ministries/department can consider requests for compassionate appointment even where the death or retirement on medical grounds of a government servant took place long back, say five years or so. while considering such belated request it should, however, be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the government servant in order to relieve it from economic distress. the very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. therefore, examination of such cases would call for a great deal of circumstances. the decision to make appointment on compassionate grounds. in such case may, therefore, be taken only at the level of the secretary of the department / ministry concerned”. 6. the above instructions provide a specific procedure to be followed in belated claims which is that the decision to make appointment on compassionate grounds in such cases is to be taken only at the level of the secretary of the department / ministry concerned. in this case this procedure has not been followed and claim of the applicant has been rejected by the garrison engineer, 862 engineers works section c/o 56 apo (respondent no. 6) whereas it was to be considered at the level of respondent no.1 and this part of the instructions has not been superseded specifically in the subsequent instructions dated 5.5.2003 of the department of personnel and training, new delhi, in which the time limit of three years has been laid down for consideration of cases of appointment on compassionate grounds. 7. in our considered opinion, the instructions dated 5.5.2003 are not applicable in the present case as these instructions came into force when the case of the dependant is to be considered by the committee on receipt of application or compassionate appointment and after review of indigency for 3 years, the matter is closed for further consideration whereas in the present case, the applicant has submitted his application at a belated stage after attaining majority which, as mentioned in preceding paras and is required to be sent upto the level of secretary for consideration of such application, which is not done in the present case by the respondents to enable the secretary to use his discretion to consider the case of the applicant for compassionate appointment. 8. thus, for the foregoing reasons, the impugned orders, annexures a-1 and a-2 are found to be without jurisdiction and as such are quashed and set aside. respondent no. 1 is directed to consider the case of the applicant in terms of para 8 reproduced here-in-above and others provisions of the scheme and pass necessary orders supported with reasons as per rules and law, within a period of 6 months from the date of receipt of a copy of this order. 9. with the above directions, this original application stands disposed of. no costs. let a copy of this order be sent directly to respondent no. 1 also.
Judgment:

Oral:

SHYAMA DOGRA, MEMBER (J)

1. The facts, as projected by the applicant, are that his father who was working as Electrician under the respondents died in harness on 1.3.2003 leaving the family in penury. He left behind his wife, two sons including the applicant and two daughters. The petitioner was the eldest son and was a minor at that point of time. On becoming a major, he submitted a representation dated Nil for appointment on compassionate grounds stating that the entire family was dependent upon the income of the deceased. The younger brothers/sisters of the applicant wanted to pursue their studies. The family is in dire need of financial support. However, the case of the applicant was rejected vide order dated 1.6.2010 (Annexure A-2) on the ground that as per existing rules, case for compassionate appointment are considered within the period of one year from the date of death of a government employee and as such case of the applicant cannot be considered as it was more than seven years old.

2. The applicant submits that his mother again submitted a representation dated 15.6.2010, which has again been rejected by Respondent No. 6 vide order dated 23.6.2010 (Annexure A-3) on the ground that as per instructions dated 5.5.2003, case for compassionate appointment of a person has to be initiated within one year subject to relative merits and availability of vacancy. This period in exceptional circumstances, can be extended upto maximum of three years. The case of the applicant being more than 7 years old cannot be considered. The applicant has, therefore, prayed for quashing of the impugned orders, Annexure A-1 and A-2 and for directing the respondents to offer appointment to him against a Group D post against 5% quota. Both the orders have been passed by the Garrison Engineer, 862 Engineers Works Section C/o 56 APO (Respondent No. 6) whereas under clause 8 of the same, the belated cases are required to be sent upto the Secretary or Ministry level for consideration.

3. The respondents have filed a reply reiterating the stand taken by them in the impugned orders.

4. We have heard the learned counsel for the parties and perused the material on the file.

5. From the material on the file including the Scheme for Compassionate Appointment, Annexure A-4, we find that there is a specific provision for considering belated requests for compassionate appointment in para 8, which being relevant is reproduced as under :

“Ministries/Department can consider requests for compassionate appointment even where the death or retirement on medical grounds of a Government servant took place long back, say five years or so. While considering such belated request it should, however, be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the Government servant in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. Therefore, examination of such cases would call for a great deal of circumstances. The decision to make appointment on compassionate grounds. In such case may, therefore, be taken only at the level of the Secretary of the Department / Ministry concerned”.

6. The above instructions provide a specific procedure to be followed in belated claims which is that the decision to make appointment on compassionate grounds in such cases is to be taken only at the level of the Secretary of the Department / Ministry concerned. In this case this procedure has not been followed and claim of the applicant has been rejected by the Garrison Engineer, 862 Engineers Works Section C/o 56 APO (Respondent No. 6) whereas it was to be considered at the level of respondent no.1 and this part of the instructions has not been superseded specifically in the subsequent instructions dated 5.5.2003 of the Department of Personnel and Training, New Delhi, in which the time limit of three years has been laid down for consideration of cases of appointment on compassionate grounds.

7. In our considered opinion, the instructions dated 5.5.2003 are not applicable in the present case as these instructions came into force when the case of the dependant is to be considered by the Committee on receipt of application or compassionate appointment and after review of indigency for 3 years, the matter is closed for further consideration whereas in the present case, the applicant has submitted his application at a belated stage after attaining majority which, as mentioned in preceding paras and is required to be sent upto the level of Secretary for consideration of such application, which is not done in the present case by the respondents to enable the Secretary to use his discretion to consider the case of the applicant for compassionate appointment.

8. Thus, for the foregoing reasons, the impugned orders, Annexures A-1 and A-2 are found to be without jurisdiction and as such are quashed and set aside. Respondent No. 1 is directed to consider the case of the applicant in terms of para 8 reproduced here-in-above and others provisions of the Scheme and pass necessary orders supported with reasons as per rules and law, within a period of 6 months from the date of receipt of a copy of this order.

9. With the above directions, this Original Application stands disposed of. No costs. Let a copy of this order be sent directly to Respondent No. 1 also.