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High Court of Kerala
T.R. Ramachandran Nair, A.V. Ramakrishna Pillai, P.V. Asha, JJ.
Bharat Sanchar Nigam Ltd - Appellant
Versus
Rajesh - Respondent
O.P. (CAT) No. 458 of 2012
Decided On : 19-01-2015
Constitution of India,1950 - Article 14 and 16 - service matter - Claim for - Compassionate appointment - Conditions - Recruitment in public service - Mandate provisions have to be followed for the purpose of making appointment and while considering eligible candidates - De hors the Scheme no discretion is available for an Appointing Authority -Appointing authority - Amendment in Scheme of compassionate appointment - Whether vested right can be claimed either with regard to the date of death or date of consideration an applicant can successfully ward off applicability of any amendment to the scheme to his or her application - whether the applicant has accrued a vested right as on the date of modification of an existing Scheme or amendment of a Scheme - Challenged - Held, Claim for compassionate appointment is an exception to the method of recruitment in public service - Mandate under Articles 14 and 16 of Constitution of India will have to be followed for the purpose of making appointment and while considering eligible candidates -Compassionate appointment can be made only as per the scheme or Rules or Regulations - De hors the Scheme no discretion is available for an Appointing Authority - It cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employees family at the time of his death or incapacity- When a vested right for compassionate appointment arises - If an applicant is entitled for appointment simply by filing an application de hors the number of vacancies arising in a year or even falling under direct recruitment quota it can be said that he is having a vested right for appointment - Government has a right to frame or adopt new norms for appointment without violating constitutional guarantees under Articles 14 and 16 - Judicial scrutiny can only extend to consider the question whether the policy framed infringes the spirit of Articles 14 and 16 - Amendment in Scheme of compassionate appointment - If only vested right can be claimed either with regard to the date of death or date of consideration an applicant can successfully ward off applicability of any amendment to the scheme to his or her application - Compassionate appointment in B.S.N.L. as per 1998 Scheme - New policy Guidelines issued in 2007 after death of employee but before submission of application - When applicants cannot claim any vested right, norms, as on the date of consideration, will be the relevant one - There cannot be any generalised Rule that Scheme as on the date of death or date of application will have to govern the parties - Always the question will have to be considered whether the applicant has accrued a vested right as on the date of modification of an existing Scheme or amendment of a Scheme.
The Order of the Court was delivered by T.R. Ramachandran Nair, J.
1. These cases have been referred for consideration by a Full Bench, by a Division Bench as per order dated 17/02/2012. In the various original petitions the orders passed by the Central Administrative Tribunal, Ernakulam Bench in favour of the respective applicants (respondents therein) are under challenge. OP (CAT) No. 2486/2012 is filed by an applicant whose OA No. 546/2010 was dismissed by the Tribunal.
2. The petitioners, except in OP (CAT) No. 2486/2012 are respectively the Bharat Sanchar Nigam Limited (for short "BSNL") and its officers. The main legal issue raised is as to the true effect of the communication of the BSNL dated 27/06/2007 providing a weight age point System for assessment of indigent condition of the applicants for compassionate appointment. The scheme for appointment on compassionate basis is the one framed in the year 1998 and the Central Administrative Tribunal took the view that the applications in these cases having been filed before 27/06/2007, the original scheme of 1998 has to be applied, i.e. as on the date of death of the employee, without reference to the communication issued by the BSNL on 27/06/2007.
3. We reproduce herein below the order of reference made by the Division Bench consisting of Thottathil B. Radhakrishnan and C. T. Ravikumar, JJ.
"Order of reference Thottathil B. Radhakrishnan, J.
1. This bunch of Original Petitions filed against different decisions of the Central Administrative Tribunal (Ernakulam Bench) raises a common issue of law. Therefore, they are dealt with and heard jointly.
2. Respondents in these matters, who were among the applicants before the Tribunal, had applied to Bharat Sanchar Nigam Limited, for short, "BSNL", before 27/06/2007 for compassionate appointment.
3. The short issue that arises for consideration is as to the legal effect of the communication issued by BSNL to all the Heads of Telecom Circles on 27/06/2007 qua the official memorandum issued in 1998 by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances & Pensions, which provides for the scheme for compassionate appointment.
4. The Tribunal took the view that the application for compassionate appointment having been filed before 27/06/2007, the scheme of 1998 has to be applied without reference to the communication issued by the BSNL on 27/06/2007.
5. We heard the learned counsel for the establishment and the learned counsel for those who were the applicants before the tribunal.
6. The private respondents, the applicants before the Tribunal, are justified in relying on the decisions of this Court in WP (C) No. 36025 of 2009 and Bharat Sanchar Nigam Ltd. v. Tittin, 2011 (4) KHC 201 : 2011 (4) KLT 409: ILR 2011 (4) Ker. 379: 2011 (4) KLJ 436 to canvass for the position that this Court has stated that the scheme applicable on the date of the application for compassionate appointment has to apply in preference to any later scheme or modification.
7. The learned counsel for the establishment, the petitioner in this bunch of matters, points out that the aforesaid two decisions stand stayed by the Hon'ble Supreme Court of India. She also points out that the Allahabad Bench of the Tribunal had, essentially, taken a decision contrary to the contents of the orders impugned in these original petitions. She argues for the position that the precedents cited by the private respondents (applicants) require reconsideration, they not having laid the situational law correctly.
8. Per contra, the learned counsel for the employees, who were the applicants before the Tribunal, heavily relied on the aforesaid precedents and argued that the plea of the department is baseless, and further that, those precedents do not require reconsideration. It was pointed out that, merely because the Apex Court had stayed the precedents relied on by the employees, the precedential value of those judgments cannot be ignored by a bench of coequ
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