Telangana High Court
T.Macender Died Per Lr vs Union Of India Through Its Secretary, on 25 January, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 29160 OF 2010
ORDER:
Petitioner, a retired employee is stated to have served 32 years in the Civil Engineering Department of the 2nd respondent college, now rechristened as National Institution of Technology, Warangal. Citing health issues, petitioner sought voluntary retirement on medical invalidation five years before superannuation and the Medical Board certified his complete and permanent incapacitation on 06.09.1996 which resulted in his retirement as per G.O.Ms.No. 504, dated 30.07.1980 and G.O.Ms.No. 309, dated 04.07.1985. Consequently, petitioner sought appointment to his son viz. T. Rajender, on compassionate grounds as per G.O.Ms.No. 309, dated 04.07.1985, but the same was not considered.
It is stated that in terms of G.O.Ms.No. 214, dated 09.06.1998, the request of the employee, who retired on medical invalidation between 01.08.1996 and 09.06.1998 were to be processed and disposed of as per the conditions laid down therein. Pursuant to the said G.O., a Committee was constituted to examine the medical invalidation cases, including that of petitioner resulting in a recommendation for his medical 2 invalidation and the employment of his son in accordance with G.O.Ms.No. 177, dated 12.04.2001, however, despite repeated representations, the matter remained unresolved.
Petitioner therefore, is stated to have filed Writ Petition No. 19870 of 2005 seeking implementation of compassionate appointment scheme in respect of his son. The said Writ Petition was allowed on 02.04.2009 directing the respondents to consider appointment within two months. It is his case that Board of Governors also resolved on 17.07.2004 to consider possibility of appointing spouse / children of the four employees including petitioner who retired on medical invalidation. On 25.05.2009, petitioner gave a letter enclosing copy of the order dated 02.04.2009 in Writ Petition No. 19870 of 2005 requesting appointment of his son, but in vain. Then, petitioner is stated to have filed C.C.No. 1142 of 2009, during the pendency of which, the impugned proceedings dated 18.02.2010 were issued rejecting his case. Hence, the Writ Petition.
2. During pendency of Writ Petition, petitioner died and his son Sri T . Rajedner was brought on record as his legal representation vide order dated 23.03.2023 in I.A.No. 1 of 2022.
3. In the counter-affidavit filed on behalf of the 2nd respondent, it is stated that petitioner initially was appointed as a 3 Cleaner in NIT, Warangal on 10.09.1964, progressed through various roles and ultimately, served as a Grade 'D' Mechanic from 27.09.1995. Based on his date of birth, he was slated for superannuation on 31.03.2002, however, on medical grounds, though Application dated 01.07.1996, he sought retirement and requested for appointment for his son. The Superintendent of MGM Hospital, Warangal communicated the findings of Medical Board through letter dated 06.09.1996 determining petitioner to be completely and permanently incapacitated leading to his sanctioned retirement from 06.09.1996.
It is stated that the 2nd respondent college was rechristened as National Institute of Technology, Warangal which is an autonomous grant-in-aid institution. It adopts new rules and procedures, aligning them with those of the Central Government. The Ministry of Human Resource Development communicated these changes. Petitioner retired well before the conversion, hence, the rules of State Government cannot be followed by a central government institution. This respondent underscores that Writ Petition was filed on 16.11.2010 i.e. more than 14 years after the petitioner's medical invalidation.
Tis respondent laid emphasis that subsequent to petitioner filing Writ Petition and Contempt Case, a comprehensive 4 review took place. The examination revealed that petitioner's request could not be accommodated due to appointment of 55 non-teaching employees on compassionate grounds, surpassing 5% vacancy limit in a year. Additionally, the institution's staff count exceeded the sanctioned strength with 355 non-teaching staff against 284 sanctioned posts. The Board of Governors resolved to consider compassionate appointments, but due to absence of vacancies, resolution could not be implemented. According to this respondent, compassionate appointments are not obligatory and highlights engagement of petitioner's son on outsourcing basis.
It is the case of this respondent that compassionate appointments, while deviating from standard appointment rules, serve the commendable purpose of aiding the deceased employee's family during crisis. The Hon'ble Supreme Court in Umesh Kumar Nagpal v. State of Haryana 1, emphasized the objective of providing immediate relief to families facing the abrupt loss of the sole bread-winner. It highlights that the mere death of an employee does not automatically entitle the family to such livelihood support. Additionally, it underscores that compassionate employment cannot be granted after an unreasonable period, as it is not a vested right exercisable at any 1 (1994) 4 SCC 138 5 future time. Referring to the judgments in Ravi Koch v. State of Meghalaya 2 and Ravi Shanker Kumar v. Union of India 3, the respondent emphasizes dismissal of similar petitions due to extended survival periods of the families and significant delays in filing. The Court ruled that claims for compassionate appointments lose significance when families have sustained themselves for an extended period or when petitions are heavily barred by laches. Hence, the 2nd respondent seeks dismissal of the Writ Petition.
4. Petitioner also filed the reply-affidavit stating that the Board of Governors being the supreme body of NIT having considered the possibility of his appointment as one time measure, the question of relying on rules framed by the Central Government or State Government does not arise. He states that widow pension has nothing to do with the compassionate appointment and respondents engaged him on outsourcing basis because of his competency, which, as a matter of fact, ought to have been by way of permanent appointment. Appointing persons on outsource basis itself shows the necessity for recruitment in the institution. It is stated that there are no laches on his part and he has been pursuing remedies continuously with the respondent as well as 2 2019 SCC Online 4 3 2019 SCC Onlilne 255 6 the legal remedies available by approaching this Court. According to petitioner, upper age limit could be relaxed and the age eligibility shall be determined from the date of application and not the age of appointment. He relies on the judgment of the Hon'ble Apex Court in Punjab State Power Corporation Limited v. Nirval Singh 4 in that regard. Finally, it is the request of petitioner that if respondents cannot give appointment, this Court may direct them to award solatium of Rs.20 lacs for depriving him appointment in spite of Resolution of Board of Governor. To justify his claim, reliance is placed on the judgment of the Apex Court in Chief General Manager, Telecommunication, BSNL v. Vidya Prasad 5, MGB Gramin Bank v. Chakrawarti Singh 6 and Central Coalfields Limited through its Chairman and Managing Director v. Smt. Parden Oraon 7.
5. Heard Sri Bankatlal Mandhani, learned counsel for petitioner as well as Sri T. Mahener Rao, learned Standing Counsel for the 2nd respondent. Learned counsel for petitioner in support of his contentions, relies on the judgment of the
6. The facts are not in dispute. Learned counsel draws attention of this Court to the letter addressed by the Registrar to 4 (2019) 6 SCC 774 5 (2021) 13 Supreme Court Cases 212 6 2013 Law Suit (SC) 706 7 AIR 2021 Supreme Court 1876 7 the Advocate on 20.10.2004, wherein it is stated that the Board of Governors at its meeting held on 17.07.2004 considered the possibility of appointment of spouse / children of the four employees who retired on medical invalidation prior to becoming NIT as one time measure. This fact was also admitted by the 2nd respondent, but however, their case is that the same could not be considered as no vacancies were available then and the number of non-teaching employees were in excess of sanctioned strength. Though this Court in Writ Petition No. 19870 of 2005 vide order dated 02.04.2009 directed the respondents to consider request of petitioner for appointment of his son on compassionate grounds as proposed vide letter dated 20.11.2004 and take appropriate decision in accordance with law, preferably within a period of eight weeks from the date of receipt of the said order, the respondents passed the impugned order dated 18.02.2010 wherein it is observed that: ' .... The matter was once again considered carefully and the case of the petitioner for appointment on compassionate grounds was considered and rejected as per the Scheme since 55 non-teaching employees were appointed on compassionate grounds on medical invalidation ground which is more than 5% prescribed under the Scheme. As per the MHRD instructions, the ratio of 1:1:1 should be maintained between teaching and non-teaching staff are working in the Institute which itself is more than the sanctioned 8 posts. However, the case of the individual will be considered as and when any suitable vacancy arises against the sanctioned posts in future." Further, the respondents draws attention of this Court to the notification dated 19/22-2-2013 issued by the NIT inviting applications from eligible in service Group-C employees of the institute who are drawing grade pay of Rs.1800/- or above for filling the earmarked vacancies of Junior Assistants as per the DoPT Model Recruitment Rules. It is stated that recruitment process initiated against the said notification has already been completed and all seven vacancies were filled up from among the serving. Here it is to be noted that in the Scheme for compassionate appointment, Clause 4 : Posts to which such appointments can be made shows the Group 'C' posts against the direct recruitment quota. Against clause 7 : Determination / availability of vacancies (g) says that Liberalized method of calculation of vacancies for small ministries / departments - The small Ministries / Departments may apply a more liberalized method of calculation of vacancies under 5% quota for compassionate appointment. The small Ministries / Departments, for the purpose of these instructions, are defined as organizations where no vacancy for compassionate appointment could be located under 5% quota for the last three years. Such small Ministries / Departments may add up to the total of DR vacancies in Group 'C' 9 and erstwhile Group 'D' posts (excluding technical posts) arising in each year for three or more preceding years and calculate 5% of vacancies with reference to the grand total of vacancies of such years, for locating one vacancy for compassionate appointment. This is subject to the condition that no compassionate appointment was / has been made by the Ministries / Departments during 3 years or number of years taken over and above 3 years for locating one vacancy under 5% quota. Clause 9 :
Belated requests for compassionate appointment: (a) Ministries / Departments 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 requests 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 all for a great deal of circumspection. The decision to make appointment on compassionate grounds in such cases may, therefore, be taken only at the level of the Secretary of the 10 Department / Ministry concerned. In the light of the same, the argument of petitioner that the Institute had avoided appointment to his son is incorrect.
6. Another contention of the respondents that the Writ Petition filed after more than 14 years of medical invalidation of petitioner is liable to be dismissed, merits consideration. They underlined the concept of compassionate appointments which is provided to assist the family of the government servant to relieve the family from economic distress. Even though the respondent institution is not under obligation to provide compassionate appointment, petitioner's son was engaged on outsourcing basis.
The very fact that petitioner and his family, apart from pension / family pension sanctioned by the respondent, has been able to manage all these years should normally be taken as adequate proof that petitioner has dependable means of subsistence. Consequent on the death of the employee, his wife is getting family pension and dearness allowance i.e. Rs.20,179/- and medical allowance of Rs.600/- as on date besides entitlement for medial reimbursement. The contention of the respondents is fortified by the judgment of the Hon'ble Apex Court in Umesh Kumar Nagpal's case, wherein it is held that the whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family of the deceased from 11 financial destitution and to help it get over the emergency. Offering compassionate appointment as a matter of course irrespective of the financial condition of the family of the deceased or medically retired government servant is legally impermissible (emphasis supplied). Dealing with similar circumstances in Ravi Koch's case (supra), the Hon'ble High Court of Meghalaya held that when a family has survived for 18 years, claim for benefit of compassionate appointment loses significance and therefore, dismissed the Writ Petition. In another judgment in Ravi Shanker Kumar's case (supra), the High Court of Patna observed that the Writ Petition has been filed after an inordinate delay of almost ten years and the explanation sought to be given for the delay does not appear to be convincing and dismissed the Writ Petition as heavily barred by laches. In this regard, petitioner justifies his case contending that widow pension has nothing to do with the compassionate appointment and the respondents engaged him on out-sourcing basis which is not a permanent appointment. Further, he has produced the information under Right to Information Act showing the vacancy position i.e. Junior Assistant - 3, Senior Assistant - 3, Assistant (SG-II) 2.
Be that as it may, in the impugned order itself, since it is stated that case of the individual would be considered as and when suitable vacancy arises against the sanctioned posts in 12 future, it is not appropriate for this Court to interfere with the said proceedings. Further, the question of awarding solatium / compensation, as claimed by petitioner, also does not arise.
7. The Writ Petition is therefore, disposed of directing the 2nd respondent to consider the candidature of petitioner whenever vacancy arises against the sanctioned posts in future.
8. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 25th January 2024 ksld