Sri. Basavantkumar S/O Late ... vs Bharat Sanchar Nigam Limited
2022 Latest Caselaw 5729 Kant

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                                   WP No. 102621 of 2021


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 30TH DAY OF MARCH, 2022

                         PRESENT
        THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
                             AND
          THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
         WRIT PETITION NO. 102621 OF 2021 (S-CAT)
BETWEEN:

1.   SRI. BASAVANTKUMAR S/O LATE RAMANNA
     SOLARGOPPA, AGED ABOUT 27 YEARS,
     OCC. NIL, R/O. 34,
     KALIDASNAGAR, VIDYA NAGAR,
     HUBBALLI 580031, DIST. DHARWAD.

                                                ...PETITIONER

(BY SRI. CHETAN T LIMBIKAI, ADVOCATE)

AND:

1.   BHARAT SANCHAR NIGAM LIMITED
     A GOVERNMENT OF INDIA ENTERPRISES,
     CORPORATE OFFICE,
     ESTD SECTION, 5TH FLOOR,
     BHARAT SANCHAR BHAVAN,
     JANAPATH, NEW DELHI 110001

2.   THE GENERAL MANAGER
     DHARWAD TELECOM DISTRICT,
     SANCHAR SADAN,
     NEAR RAILWAY STATION,
     HUBBALLI 580020

                                             ...RESPONDENTS
(BY SRI. M.B.KANAVI, CGSC)
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                                      WP No. 102621 of 2021


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER
PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL IN
O.A.NO.170/00336/2017 DATED 20.11.2018 AND CONSEQUENTLY
QUASH THE ORDER/COMMUNICATION LETTER DATED 13.03.2017
ISSUED BY THE 2ND RESPONDENT.
     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, S. SUNIL DUTT YADAV J., PASSED THE
FOLLOWING
                             ORDER

The petitioner who was the applicant before the Central

Administrative Tribunal, Bengaluru Bench (for short, 'Tribunal')

has filed the present petition calling in question the validity of

the order of the Tribunal passed in O.A.No.170/00336/2017

dated 20.11.2018, whereby the challenge to the endorsement

at Annexure-A10 issued by the respondent came to be

rejected, thereby application of the applicant for appointment

on compassionate appointment was rejected.

2. The parties are referred to by their ranks before the

Tribunal for the purpose of convenience.

3. The applicant is stated to be the son of Ramanna

S/o Basavantappa Solargoppa who was an employee of the

respondent-Nigam. It is submitted that the said employee

died on 22.12.2013, and on 12.12.2014, the applicant filed an

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application under the prevalent rules seeking for

compassionate appointment. The said application came to be

rejected as per Endorsement dated 13.3.2017 (Annexure-A10)

on the ground that as per the applicable Circular dated

21.4.2016 at Annexure-A7, the applicant was required to have

obtained 55 points or more and the applicant in the present

case had obtained only 16 points. The challenge to the said

endorsement came to be rejected by the Tribunal while

observing that the applicant had got only 16 points and as 55

points was the minimum cut-off points for eligibility, there was

no merit in the application.

4. The counsel for the applicant has contended that

the order at Annexure-A10 was passed by the Deputy General

Manager (Admn), G.M. Telecom, DWD TD Hubli-20 and was

without jurisdiction insofar as the consideration of the

applicant as per the circular at Annexure-A7 was to be made

by the Circle High Power Committee consisting of three

officers.

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5. It is further contended that the allotment of points

as per Annexure-A10 is contrary to the circular at Annexure-A7

and that the applicant was required to be allotted points as

follows:_

i) Dependents: 15 points ought to have been allotted as per the circular as there were three dependents i.e. a son, daughter and widow as is evidenced from the survival certificate of Tahsildar at Annexure A-2 and accordingly, the allotment of 10 points is contrary to the circular.

ii) Under the head of family pension as per the impugned endorsement, he was allotted 2 points while as per the circular insofar as the family pension of 4250 he was entitled to be awarded 20 points and accordingly, on this ground the points allotted ought to have been 20 instead of 2 two points.

iii) Insofar as points allotted on left out services of four years-six months, it is contended that he was required to be allotted five points though the points allotted at Sl.No.3 was only four points.

iv) Insofar as allotment of points at Sl.No.4 same is not disputed.

v) As regards allotment of points at Sl.No.5, it is submitted that he was entitled for three points as per

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the circular at Annexure-A7 as the terminal benefit was 14,00,198/-. Accordingly, it is submitted that the applicant ought to have been allotted 42.5 points.

6. Even if the calculation of points put-forth by the

applicant is accepted without recording any finding regarding

the correctness of the same, the applicant would be entitled for

award of points of 42.5 which was below the eligibility points of

45 and above.

7. Though contentions are raised that order of the

Tribunal is cryptic and a non speaking order, however, we find

that the conclusion arrived at by the Tribunal is just and

proper, insofar as the Tribunal has recorded a finding that his

application is not eligible for consideration as the points are

below 55, which is a minimum threshold which needs to be

required for consideration.

8. Further submission of the learned counsel for the

applicant is that the law prevailing as on the date of death

ought to be taken note of in the light of the judgment of the

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Apex Court in the case of Secretary to Government,

Department of Education (primary) and others Vs.

Bheemesh alias Bheemappa, reported in 2021 SCC Online

SC 1264.

9. Learned counsel for the applicant has relied on the

judgment of the Hon'ble Supreme Court in the case of State

of Madyha Pradesh and others Ashish Awasthi, reported

in (2022) 2 SCC 157, as regards the proposition that the

policy prevalent at the time of the death of the of the deceased

employee only is required to be considered and not subsequent

policy and accordingly, it is submitted that in the impugned

order at Annexure-A10, the decision arrived at is on the basis

of the subsequent policy that has come in to effect in the year

2016, while the employee had died in the year 2013 and

accordingly, such conclusion is erroneous.

10. Relying upon the judgment of the Hon'ble Apex

Court in the case of Bheemesh (supra), it is contended by the

learned counsel for the respondent that the observation at

para 17 of the said judgment needs to be kept in mind to

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determine as to whether new scheme or existing scheme as on

the date of death ought to be applied.

11. It is contended that the scheme ought to be made

applicable would be new scheme as the new scheme takes

away the benefit of old scheme and where the benefit of

existing scheme is enlarged by modified scheme, the old

scheme would be applicable.

12. It is contended that the choice of the scheme must

be guided by the benefits of the employer keeping in mind that

the compassionate appointment is considered to be exception

to the normal method of recruitment. Accordingly, it is

submitted that the weightage under the new scheme as per

Annexure-A7 enlarges the benefits to the employees and if

that were to be so, it is the old scheme that must be adopted

in terms of the observation made in para 17 of the judgment in

the case of Bheemesh (supra).

13. Learned counsel for the respondent on other hand

has contended that even if the policy prevailing as on the date

of death is taken note of, the applicant would be ineligible and

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no purpose would be served by remanding matter back and

points out as to the weightage that the applicant would have

got even as per the Circular of the year 2007.

14. Learned counsel appearing for the respondent has

filed a memo and produced the Circular dated 27.06.2007,

which introduced the point system. It is pointed out that the

Circular dated 27.06.2007 was in force till introduction of

Annexure-A7 and it is submitted that even if the Circular dated

27.06.2007 is taken note of which would be circular operating

as on the date of death of employee, the applicant would be

ineligible.

15. Perused the Circular at Annexure-A1 which reads as

under:

Bharat Sanchar Nigam Limited [A Government of India Enterprises] Corporate Office 102, B.Statesman House, NEW DELHI-110001 [Personnel-IV Section]

Dated: 27.06.2007 No.273-18/2005-pers-VI

To, All heads of Telecom Circles

Sub: Compassionate Ground Appointments (CGA)- Policy guidelines regarding.

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It has been decided to bring uniformity in assessment of Indigent condition of the family for offering compassionate ground appointment in view of the following recent developments:

(A) Advise by Hon'ble Chairman, National Commission for Scheduled Tribes in the meeting held on 20.11.2006 with Secretary (Telecom) and CMD, BSNL that "keeping in view the guidelines issued by Govt. of India, standard guidelines for eligibility for appointment on compassionate grounds may be formulated by the BSNL" and

(B) BSNL Board's decision, communicated vide letter No. 6- 5/2004-EB (Part-1) dated 26.12.2006, wherein "Circle Heads are authorised to create non-executive level posts for offering compassionate ground appointment subject to the Policy guidelines to be given by the Corporate Office In this regard".

2.0 Accordingly, The High Power Committee of the Corporate Office for considering the compassionate ground appointment cases, Headed by Director (HRD), recommended for Introduction of weightage point system, within DOPT guidelines, to bring uniformity in assessment of indigent condition of the family, which has subsequently been approved by the Management Committee of BSNL as per the following: -

(1) To continue with the policy guidelines on compassionate ground appointment, issued by DOPT vide OM NO. 14014/6/94-Estt (D) dated October 9, 1998 and to Introduce the weightage point system, as per detalls given at Annexure-1.

(II) The assessment criteria for recommendation of the indigent condition of the family by the Circle High Power Committee shall be - (a) Cases with 55 or more NET POINTS shall be prima-face treated as eligible for consideration by Corporate Office High Power Committee for compassionate ground appointment and (b) Cases with NET POINTS below 55 (i.e.54 or less) shall be treated as non-indigent and rejected.

3.0 Keeping in view the provisions of weightage point system, the procedure for processing the cases of compassionate appointment shall now be as below:

(I) The Welfare Officer of the Circle/SSA/Unit will meet the members of the family of the ex-employee immediately

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after his death/medical Invalidation to advise them about provisions of the scheme and assist them in completing necessary formalities in filing up of details a prescribed proforma i.e. Profoma Part 'A' (as in Annexure of the DOPT scheme) and other details needed as per weightage point system and verify it with the official records. The office concerned fill up the Proforma Part B as per the existing practice.

(II) The SSA/Unit concerned will scrutinise the application and prepare check-list according to the weightage point system (Proforma enclosed at Annexure-II) for the purpose of assessment of indigent condition in the family.

(III) The Check-list (in the format of Annexure-II), Proforma Part 'A' and Proforma Part 'B' complete in all respects, along with supporting details, shall be sent to concerned Territorial Circle for further processing.

4.0 A Circle High Power Committee (CHPC), consisting of Circle Head and two other officers of SAG/JAG level, nominated by Circle Head, shall consider applications for appointment on compassionate grounds as per weightage point system. In the case with net points 55 or more, the minutes of the Circle HPC will be sent to BSNL Corporate office, along with supporting documents including the check-list, for consideration and decision by Corporate Office. In the case with net points below 55 (i.e. 54 or less), the family will be treated as not living in indigent condition and such compassionate ground appointment request will be rejected by the Circle. The applicant will be intimated about rejection of the request by the concerned circle through a speaking order.

5.0 Where there is a problem in attributing points on any of the aspects due to peculiar circumstances in any specific case, the same may also be sent to BSNL Corporate Office along with supporting documents, including the check-list, for consideration and decision by Corporate Office.

6.0 Any appeal for re-consideration of the already rejected case will also be considered according to the weightage point system. If In any appeal case, net points come to 55 or more, the complete case along with check-list may be sent to the Corporate Office for decision.

7.0 The High Power Committee of the Corporate Office will consider and decide the cases, forwarded by Territorial Circles, with the approval of CMD, BSNL.

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8.0 The decision taken by the Corporate office will be intimated to respective circles for further follow up action i.e. Informing the candidate about acceptance or rejection or wait listing etc. The procedure with regard to waitlisting and offering of compassionate ground appointment under 5% CGA quota shall remain the same as prescribed vide letter No. 268-101/2002-Pers.IV dated 1.10.2002.

(P.S.Venkatraman) Asstt. Director General (pers. IV) TT: 2373 4152

Copy to: (1) PPS to CMD, BSNL, New Delhi.

(2) PS to all Directors of BSNL Board, New Delhi. (3) All Sr. DDSG/DDSG in Corporate office, New Delhi. (4) C.S. & GM(Legal), Corporate Office, BSNL New Delhi.

(5) JL.DDG (EF/IA), Corporate office, New Delhi. (6) Asstt. Director(OL), Corporate Office, BSNL, New Delhi:

For Hindi Version.

(7) General Secretary, BSNLEU.

Annexure-I reads as follows:

Weightage Point System for assessment of Indigent Condition (A) Items with Positive Points ITEM WEIGHTAGE POINTS

1. Dependent's weightage Max.30 points

(a) @ 5 points per dependents

(b) @ 5 points per handicap dependents

(c) @ 5 points per minor child

(d) @ 5 points per unmarried daughter (after 18 yrs. Of age)

Sum of total points for (a) to (d) above shall be subject maximum of 30 points.

2. Basic Faily Pension Points Max. 20 Points (IDA pattern or CDA = 50%)

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4250 & above Nil

3. Left out service Max. 15 points < 1 years left out service* Nil > 1 year left out service* @ 1 point for each year of left out service subject to maximum of 15 points.

* to be counted w.r.t. date of death/medical invalidation

4. Applicants weightage Max. 15 points

Others (Son/Daughter/Brother/ Sister?Widower) Nil

5. Terminal benefits including DCRG, Max. 10 points GPF/EPF, Leave encashment,CGEGIS/ GSLI,LIC policies, ex-grantia payment etc.

>10 Lac Nil

ITEM WEIGHTAGE POINTS

6. Accommodation Max.10 points

And not owning his own house

-Family living in own house Nil

(B) Items with Negative Points

7. xxx xxx xxx xxx

8. xxx xxx xxx xxx

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Assessment criteria

I. Cases with 55 or more Net POINTS shall be prima-facie treated as eligible for consideration by corporate office High Power committee for compassionate ground appointment.

II. Cases with NET POINTS below 55 (i.e. 54 or less) shall be treated as non-indigent and rejected.

16. If we were to re-calculate the weightage as per

Annexure-I, the eligibility of the applicant is to be determined,

which would be as follows:

Item No.1(a). In the present case, as there are three dependants as per the weightage in 1(a), he would be given 15 points.

Item No.2. He would be given 2 points as his pension was Rs.4,250/-.

Item No.3. As regards left out service, as the deceased employee had 4 years 6 months of left out service, he would be entitled to 4.5 point (1 point for each year and even if it is accepted half point is to be given for 6 months remaining period).

Item No.4. Applicant's weightage where applicant has son as in the present case, no point would be awarded.

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Item No.5 As regards terminal benefits, as terminal benefit is Rs.14,01,988/-, the applicant will not be entitled to any point as per weightage scheme of item No.5.

Item No.6. As regards accommodation, as the applicant has his own house as is revealed from Annexure-R1 filed along with reply statement dated 24.01.2018, weightage would be Nil.

17. If the points as stated above are calculated, net

point would be 22.5 and as per the criteria in the circular dated

27.06.2007 for the purpose of eligibility, the points is required

to be 55.6. Accordingly, even if terms of Circular as existed on

the date of death of applicant is looked into, the question of

remanding the matter for fresh consideration would be an

exercise of futility. Accordingly, we refrain from interfering with

the order of the Tribunal.

18. Insofar as other contention that the order at

Annexure A10 is passed by an authority which is incompetent,

i.e. the Deputy General Manager, it must be noted that there is

a specific observation in the order that the order is issued with

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the approval of the competent authority. If it were to be so,

the said contention regarding the order being passed by an

incompetent Authority is also liable to be rejected.

19. It is the contention that the application was filed on

12.12.2014 and the endorsement at Annexure-A10 came to be

passed on 13.3.2017 and such action in delayed consideration

of the application was illegal. Learned counsel for the applicant

would contend that the judgment of the Hon'ble Apex court in

case of Sushma Gosain and Others Vs. Union of India &

Others (1989) 4 SCC 468 clearly provides that the applicant

for compassionate appointment ought to be decided at the

earliest point of time and relies on the observation made at

para 9 of the said judgment. We are in full agreement with

said observation and would advice the employer as the case

may be including the respondent herein to dispose off the

applications relating to compassionate appointment

expeditiously keeping in mind the objectives of the Rules. But,

however, in the present case, despite there having been some

delay in consideration of the applications, as regards the

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ineligibility of the applicants, old Rules as well as new Rules

are clear and accordingly, we are not in a position to extend

any relief to the applicant herein.

20. We are also of the view that in the present case,

whether it is new scheme or old scheme, if both schemes are

taken note of, the applicant is ineligible. In the light of the

same, we find no reason to set-aside the order of the Tribunal

or the impugned endorsement or remand the matter back for

fresh consideration. Accordingly, petition is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

VMB/AC/JTR