U. Sarathchandran, Judicial Member.
1. Applicant's father died in harness on 14.1.2014. He was survived by the applicant and her mother. She sent Annexure A-4 application on 30.6.2014 for appointment on compassionate grounds. Her mother also sent Annexure A-5 representation praying for compassionate appointment to the applicant stating the penurious condition of her family and the huge financial liabilities incurred for the prolonged hospitalisation of her husband. The application for compassionate appointment was rejected by Annexure A-1 communication. The Circle Relaxation Committee which considered the application on 31.12.2014 granted marks to the applicant, based on which her request was rejected. Annexure A-6 is the copy of the minutes of Circle Relaxation Committee. According to the applicant, the award of marks in Annexure A-6 is based on Annexure A-7 circular dated 20.1.2010. Annexure A-6 and Annexure A-7 were supplied to the applicant subsequent to Annexure A-1, based on her requests invoking the Right to Information Act, 2005. Being aggrieved by the decision in Annexure A-1 she sent Annexure A-8 representation on 27.4.2015 to respondent no.3. Annexure A- 8 also was rejected by Annexure A-2. The applicant's mother sent Annexure A-9 representation against the rejection of Annexure A-8. Annexure A-9 too was rejected by Annexure A-3.
2. The applicant alleges that Annexure A-7 circular is different from the scheme for granting of appointment on compassionate grounds issued by the DoP&T, Government of India and hence Annexure A-7 is ultra-vires, illegal, arbitrary and violative of Article 14 and 16 of the Constitution of India. She contends that in Annexure A-7 there is absolutely no consideration of the liabilities of the persons considered for compassionate appointment. Annexure A-7 is not taking into consideration of the penurious situation of the family engendering from myriad circumstances which will not be reflected in the few points indicated in Annexure A-7. It is against the basic scheme. The date of death and date of application/consideration being proximate it ought to weigh in favour of the candidate who makes timely application and whose case is considered for the first time. Such a weightage is not reflected in Annexure A-7. A preference is given to widow which do not support the original scheme. There is no proper assessment of assets and liabilities of the family considered. There is no consideration of the circumstances like prolonged treatment of the deceased government servant and the medical conditions of the dependants etc. which will exacerbate and contribute to penurious conditions. The dependants of those who were working in lower posts ought to be given a weightage which has been totally lost sight of in Annexure A-7. The marks granted for left over service do not find support in the scheme or its objective. In such circumstances, Annexure A-7 is against the basic scheme for compassionate appointment and against the object and spirit of the scheme. It is also alleged by the applicant that there is no proper comparative assessment of the candidates who had applied for compassionate appointment reflected in Annexure A-6 and that a mere mechanical adherence to Annexure A-7 has been employed resulting in the impugned order which is vitiated with non-application of mind, based on irrelevant consideration and without reckoning the relevant factors. The applicant, therefore, seeks the relief as under:
' (i) To quash Annexures A-1, A-2 and A-3.
(ii) To quash Annexure A-7 and Annexure A-6, to the extend Annexure A6 relate to the applicant.
(iii) To direct the respondents to consider the case of the applicant for grant of compassionate appointment in accordance with the stipulations in the scheme for grant of compassionate appointment without restricting the consideration to points covered under Annexure A-7.
(iv) Grant such other reliefs as may be prayed for and the court may deem fit to grant, and
(v) Grant the costs of this Original Application. '
3. Respondents filed reply statement contending that the total relative merit point secured by the applicant was only 34 and the Circle Relaxation Committee did not recommend her case as the family was found to be not in dire indigent circumstances. The Circle Relaxation Committee considered the indigence of the family of the deceased official in an objective and transparent manner. The widow of the deceased official is getting a family pension of Rs.10,290 + Dearness Relief and is a graduate. The family owns a house valued at Rs.6,38,716 in Adoor municipality as per Annexure r-1 valuation. The family owns 6.20 ares of dry land valued at Rs.91,884/- in Adoor Village as per Annexure R-2 valuation certificate. The total terminal benefits paid to the family was Rs.13,44,673/-. According to the respondents, it is in consonance with the DoP&T O.M dated 16.1.2013, a copy of which is marked as Annexure R-5, a balanced and objective assessment of the financial condition of the family was made, taking into account its assets and liabilities including the benefits received under the various welfare schemes and all other relevant factors such as the presence of an earning member, size of the family, ages of the children and the essential needs of the family etc and it is in consonance with the above instructions of the nodal Ministry Annexure A-7 instructions have been formulated by the respondents to ensure transparency, efficiency and uniformity in considering the cases.
4. Referring to a large number of judicial decisions respondents contend that the scheme is not another source of recruitment and that appointment on compassionate grounds cannot be claimed as a matter right. Respondents pray for rejecting the Original Application.
5. A rejoinder was filed by the applicant stating that the terminal benefits of the deceased employee was insufficient to meet the various liabilities the family had. The car owned by the family was purchased on bank loan and its repayment is still continuing. The vehicle was procured mainly because the deceased employee being unwell and it was required to take him to hospital frequently at odd hours. The liabilities caused due to the prolonged and expensive treatment of the deceased employee was not taken into account by the respondents. The fact that the applicant is an unmarried daughter and the substantial amount required for her wedding was also not considered by the respondents.
6. Heard Shri.M.R.Hariraj, learned counsel for applicant and Mr.V.A.Shaji, learned ACGSC for the respondents. Perused the record.
7. Annexure A-7 relative merit point system of allocation of points to various attributes based on a 100 point scale has been assailed by the applicant as unrealistic and ultra-vires the original scheme formulated by the DoP&T on 1.9.1998. Shri.M.R.Hariraj, learned counsel for applicant argued that relative merit points which merely counts the numerical quantum of family pension and terminal benefits (including DCRG, GPF, CGEGIS, leave encashment and pension commutation) recieved by the family without taking into account of the pre-existing liabilities even before the death of the employee do not fathom the financial quagmire in which the family of the deceased offial was pushed in consequent to the death of the employee. He submitted that in this case the applicantbs father was undergoing a prolonged treatment relating to renal failure which has required huge expenses for dialysis and that the family even had to buy a dialysis machine for his treatment. Under the above circumstances, without conducting an objective assessment of the pre-existing liabilities of the family, a mechanical allocation of points to the attributes like family pension and terminal benefits received by the family is not in sync with the original DoP&T scheme. This Tribunal finds some force in the above contention.
8. The DoP&T is the originator of the scheme. On a suggestion by this Tribunal, the DoP&T was made a party so that the Tribunal would get inputs from that department regarding the appropriateness of Annexure A-7 relative merit point system introduced by the respondent department (Department of Posts). But DoP&T maintained stoic silence without filing any reply statement. A perusal of Annexure A-7 shows that it is a circular issued by the Department of Posts on 20.1.2010. There is nothing to indicate in Annexure A-7 that the DoP&T was consulted by the Department of Posts. On the other hand what has been stated in Annexure A-7 is :
'4. The existing position has been reviewed in this Department and it has been decided by the competent authority that to achieve the objective of the scheme of the Compassionate Appointment and to ensure complete transparency, merits of the cases can be conveniently decided by allocating points to the applicants, based on various attributes indicated in the references of DoP&T from time to time. Accordingly, the Department has worked out a system of allocation of points to various attributes based on a hundred point-scale as indicated in the tables below.'
9. Therefore, it is apparent that Annexure A-7 is the creation of Department of Posts by itself. The scheme of compassionate appointment was originally notified by the DoP&T and the modification from time to time also was being made by that Department. DoP&T being the nodal Ministry in service matters of Central Government servants, any tampering or modification to the scheme propounded by the DoP&T has to be got approved by the DoP&T and that should be indicated in the circulars like Annexure A-7 which appears to be the creation of the individual department. When the DoP&T scheme is the scheme made for whole of Government of India, any variations from the main scheme of DoP&T couched in the semantics like the objective of such variations are 'to ensure complete transparency, merits, based on the various attributes indicated in the reference of DoP&T from time to time' can only be treated de hors the scheme. In short, there is nothing in the record to show that Annexure A-7 was introduced by the Department of Posts with concurrence of DoP&T.
10. It is worth referring to Annexure R-5 copy of the general instructions contained in the O.M F.No.14014/02/2012 Estt(D) dated 16.01.2013 issued by the DoP&T. The portion of the said O.M extracted below pithly states the real objective of the scheme and the manner in which application for appointment on compassionate grounds has to be dealt with especially for assessing the financial condition of the family. It reads:-
' The scheme of compassionate appointments was conceived as far back as 1958. Since then a number of Welfare measures have been introduced by the Government which have made a significant difference in the financial position of the families of the Government servants dying in harness/retired on medical grounds. An application for compassionate appointment should, however, not be rejected merely on the ground that the family of the Government servant has received the benefits under the various welfare schemes. While considering a request for appointment on compassionate ground a balanced and objective assessment of the financial condition of the family has to be made taking into account its assets and liabilities (including the benefits received under the various welfare schemes mentioned above) and all other relevant factors such as the presence of an earning member, size of the family, ages of the children and the essential needs of the family, etc.'
11. Reltive merit points are contrived as badges of indigence. Undoubtedly, mere allocation of points to the various attributes is not 'a balanced and objective assessment of the financial condition of the family' sans taking into account all its assets and liabilities. The 'essential needs of the family' is another factor which has to be invariably taken into account by the authorities to evaluate the comparitive merit of the applicant for compassionate appointment. If the dire needs of the family have not been assed, notwithstanding the apparently huge retiral benefits and family pension it has received, it cannot be said that there was objective assessment of the financial condition of the family. Therefore, allocation of numerical relative merit points based on Annexure A-7 for the attribute of terminal benefits and family pension procedure for assessing the indigence is not in tune with the DoP&T scheme. Circle relaxation committee has to make enquiries in to the realities prevailing in the family of the deceased, rather than doing the arithmetical excercise of awarding relative merit points which is an easy way of skipping the financial labyrinths the family of the deceased employee is entangled in.
12. Therefore, this Tribunal feels that Annexure A7 relative merit point system employed by the Department of Posts requires a reconsideration after taking the DoP&T into full confidence. There is a long list of Apex Court decisions pointing out that appointment on compassionate grounds is not the right of the family and that only in cases where the family needs immediate assistance to prevent it from going into vagrancy on account of the sudden demise of its bread-winner compassionate appointment can be given.
13. The immediate financial condition of the family after the death of the government employee who was its bread-winner is the most important aspect to be considered. In some cases the indigent condition of the family may continue on account of myriad circumstances which cannot be foreseen by the mechanical application of the arithmetical attributes stipulated in Annexure A-7 relative merit point system.
14. In the instant case the fact that the pre-existing liabilities of the applicantbs family on account of the huge expenses incurred for treatment of her father have not been taken into consideration. A mere numerical allotment of marks based on Annexure A-7 relative merit point was done by the respondents on this count. This pedantic approach is not in tune with the scheme of appointment on compassionate grounds.
15. Ownership of a few are of land by the family of the applicant is an attribute relied on by the respondents to deny appointment on compassionate grounds. The productive nature of the land capable of rendering some income to the family has to be assessed by the respondents that. Respondents have to bear in mind that the very object of the attribute of landed property to examine whether the family can cultivate in the land and eak their livelihood out of the income or yield from the such agricultural operations. It is not expected that the family would sell the property and use the sale proceeds for sustenance for the rest of their life. Therefore, value of the property relied on by the respondents has no relevance at all as an indication of the indigence of the applicantbs family. Mere awarding of relative merit points for possession of land without assessing its potential of agricultural yeild for the sustenance of the family is not an exercise for guaging indigence.
16. Learned counsel for the applicant argued that the left over service has no relevance for indicating the indigence of the family. He argued that even in cases where the employee had only few months to retire on superannuation before his death, his dependents are eligible for compassionate appointment if it is proved that his death pushes the family to vagrancy. This Tribunal is of the view that although the left over service is not a relevant consideration for evaluating the indigence of the family, it may still be a relevant consideration for granting appointment on compassionate grounds – a prudential hedging which takes into account the families' anticipation of the impending retirement and the consequential preparedness to live with an income less than the salary the employee used to bring home.
17. Appointment on compassionate grounds is an exception to the Constitutional norms envisaged under Article 14 and 16 of Constitution of India. Nevertheless, the scheme for compassionate appointment has the under pinnings of the Constitutional philosophy in part IV of the Constitution of India which directs the State and its instrumentalities to be followed as fundamental in the governance of the country. Article 41 of the Constitution directs the State to public assistance in cases of unemployment, old age, sickness and disablement and in other cases of un-derserved want. If one examines the DoP&T scheme of 1998 vis-a vis Article 41 of the Constitution, it can be seen that the scheme is perfectly in tune with Article 41 and that the scheme can never be found fault with - if applied with the right spirit a
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nd objective contained in it. Art 14 and Art. 16 have to be subjected to the interpretative process in the light of the Part IV. 18. In the result, Annexures A-1, A-2 and A-3 are quashed and set aside. Respondents are directed to reconsider the applicantbs request for appointment on compassionate grounds in the light of the above discussion, taking into account of the liabilities existed in the family before the death of the employee. For this purpose, the applicant is permitted to produce records relating to pre-existing liabilities including the amounts availed of from the bank for the purchase of car and dialysis machine etc and other documents pertaining to the liabilities existed before the death of her father. Agricultural potential and income from such agricultural operations from the land owned by the family of the applicant and its sufficieny for mitigating its indigence shall be taken in to consideration while awarding merit points to the attribute of land. If the land does not yield any agricultural income it has to be treated as if the family has no land. Respondents are directed to reconsider the Annexure A-4 application of the applicant in the next meeting of the Circle Relaxation Committee. If the normal meeting the next CRC is not scheduled to be conducted within six months from the date of receipt of a copy of this order, respondents shall convene a special CRC for the purpose of compliance of this order and shall re-assess the indigence of the applicant's family in the light of the observations made in this order. The Original Application is allowed to the above extent. 19. Respondent DoP&T is directed to examine Annexure A7 relative merit point system in the light of the observations in this order and to issue appropriate administrative instructions as it thinks fit. 20. Parties shall suffer their own costs.